09.30.06

Terror 2016

Posted in 1848+, General at 5:51 pm by nemo

From Rad Green

http://www.tompaine.com/articles/2006/09/29/terror_2016.php

Tom Paine September 29, 2006

Terror 2016

By Aziz Huq

This week, Republicans — aided by Democratic fecklessness — bargained away
both liberty and decency in the name of partisan security

On Wednesday, the House of Representatives enacted the Military Commissions
Act, a law that strikes harder at American liberties and at the fundamentals
of American government than any since the authorization of the Japanese
internment. Thursday, the Senate passed the same bill, and President Bush is
expected to waste no time and sign it today.

Because the Act gives the president almost ultimate authority to detain,
degrade (physically and psychologically), and detain forever both citizens
and non-citizens, perhaps Bush will not issue a signing statement. He has
used signing statements in the past to signal noncompliance with a duly
enacted limit on his power. But the Military Commissions Act of 2006 places
no limits on his power. It is a blank check cashed in the liberties of the
country’s citizens and in the wasted lives of the unfortunate innocent
people swept up in America’s global detention system.

Here’s what happens next:

* * *

Ten years after the Military Commissions Act of 2006, they came for Bobby
Jaffar and his family. Officers from a Joint Terrorism Task Force, clad in
Kevlar and wielding assault rifles, didn’t knock: They cracked the door
down. Ten-year old Bobby and his 17-year old sister were seized. His father
– Brooklyn-born with roots in Djibouti — and his mother — a Yemeni Green
Card-holder — were taken away separately. It was the last time Bobby was to
see them for many years.

Bobby’s father, he later learned had been declared an “unlawful enemy
combatant” under the Military Commission Act of 2006. Under a last-minute
amendment to the MCA, the President had power to designate any person –
citizen or non-citizen — as someone who “purposefully and materially
supported hostilities.”

But, asked Bobby, why them?

Bobby’s parents ran a bodega in Brooklyn. They sometimes handled money
transfers for members of the Middle Eastern community there. Speaking to a
lawyer many years later, Bobby learned that Lebanese immigrants had used the
bodega to send money back to West Beqaa, an area within the Hezbollah
protectorate. Because Bobby’s father knew what part of the world the money
was going to, the feds concluded he had “purposefully and materially
supported hostilities.” And that was enough: He could be detained
indefinitely.

Before Congress passed the sweeping legislation in 2006, a lawyer ruefully
told Bobby later, “material support” had been a criminal statute. People
were prosecuted. They had juries. The chance to view and challenge the
evidence against them. The chance to learn whether the government had
exculpatory evidence about them. But that was in the day. Now, Bobby’s
father had a cursory hearing at which he barely had the chance to make his
story known.

Back in the day, the lawyer laughed, civil libertarians had expressed
concerns about the breadth of the criminal material support prohibition and
like statutes. Indeed, mere months before the MCA passed, there had been
expressions of outrage about the indictment of a Staten Island man
for allegedly broadcasting an Arab TV channel
owned by Hezbollah, Al Manar. Surely that was speech, squarely protected by
the First Amendment?

Ten years later, the federal government wasn’t even bothering with criminal
charges: Federal and state agents swept in during the middle of the night,
seized a person, and transported him to military brigs in Wallabout Bay, off
Brooklyn. Ten years earlier there had been only two people designated as
“enemy combatants” within the United States and they too had been held in
military brigs in South Carolina. (Ironically,
Bobby learned, Wallabout Bay was also where squalid British prison ships had
anchored during the Revolutionary War, and where more than 10,000 Americans
died in wretched, fetid cells).

Bobby never did learn what happened to his mother. She was probably taken to
the swollen internment camp at Guantánamo Bay along with tens and then
hundreds of other non-U.S. citizens. At first, Guantánamo held non-citizens
seized abroad. There had never been much fuss about the fact that the camp
held many people who were not picked from an actual battlefield, but were
swept in from the streets of Pakistan or further afield. Despite an
increasing accumulation of evidence that many of these people
were wrongly detained ,
the MCA had stipulated by fiat that they all were “unlawful enemy
combatants.” Locking up innocent people, it seemed, won votes in 2006 — at
least if those people had a different color skin and came from far away.

Until 2007, Guantánamo contained no one arrested in the United States. But
the MCA signed off on an executive power to seize people within the States
and detain them indefinitely. Before 2006, the executive branch had only
tried this in two cases, most famously against Jose Padilla
— although it had considered using it against
citizens in at least two other criminal investigations in Detroit and
Lackawanna, New York. Now, there was statutory authorization for these
detentions in the MCA.

Domestic detentions did not start immediately. The first arrest of a
non-citizen in the United States came a year after the Military Commission
Act’s passage. It hardly received mention in the press. Indeed, Bilal Milos
– an undocumented immigrant from Bosnia — never had a chance to press his
case in any court — let alone the court of public opinion. He was seized in
the dead of night and carried off to Guantánamo. Thanks to the MCA’s
suspension of habeas corpus, he had no meaningful way to challenge the
allegations against him. He slowly rotted away with the other detainees.
Once that precedent was established, the government hurried more
non-citizens down the same path. Fear settled like a choking fog around Arab
and Muslim communities throughout the country.

To the best of Bobby’s knowledge, his mother was never designated an
“unlawful enemy combatant” when she was seized and taken to Guantánamo.
Still, she could not challenge her detention in the courts. The MCA did not
just take jurisdiction away from the claims of all “enemy combatants”: It
also applied to anyone “awaiting such determination.” So far as Bobby knew,
his mother had waited and waited for her hearing, her hope and her sanity
seeping slowly away in the withering Cuban heat.

What was done to Bobby’s mother to make her talk — well, Bobby tried not to
think of that. He heard rumors. Days of confinement in a freezing pitch
black cell. He heard about “long-time standing.” Innocuous-sounding enough,
this technique had been pioneered by the KGB. After 18 to 24 hours of
continuous standing, fluid accumulates in the legs. Ankles and feet swell.
The skin becomes tense and intensely painful. Large blisters develop.
Eventually, urine production ceases. Then, renal shutdown.

At least, Bobby thought, she was likely still in Guantánamo. Without
judicial supervision, detainees were routinely handed over to Egyptian or
Syrian hands, where they were subjected to even worse tortures. (Congress
and the public ignored the warning bell sounded by the case of Maher Arar
, a Canadian citizen mistakenly rendered to Syria
for torture, simply because he happened to have lunch with the wrong person
years before).

Bobby was baffled to learn later that most legislators didn’t even know what
they were voting for when they cast “ayes” for the MCA. President George W.
Bush, he learned, had barred all but a handful of legislators from even
learning what interrogation measures they were decriminalizing. In the 2006
midterm elections, Republicans ran on a platform of fear and loathing.
Democrats, frantic not to look weak on security, gambled away a historical
heritage of anti-torture rules and accountable government, with virtually no
outcry. But how, Bobby asked, can such vast and terrible powers be vested in
one man — without any checks or restraints to make sure they were used
wisely? Was this really how democracy was supposed to work? Did no one try
to fix it?

The more he learned, the more he understood how a democracy could indeed
enact laws that fly in the face of the fundamental values of fairness and
decency that any law-abiding society requires. Ignorance and fear flow
powerfully. It proved easy for Congress to blind itself to the facts. When a
group of legislators visiting Belgium in 2009 were indicted and arrested for
war crimes for their sanctioning of treatment illegal under international
law, they found it harder to ignore the facts. But that was little comfort
for Bobby, his mother or his father.

* * *

The final version of the MCA is as bad as this short tale suggests. Enacted
out of selfish and stupid partisan motives, fuelled by fear and blind
ignorance on both sides of the aisle, it is a shameful law. It will harm
many innocent people and it will make the nation not a jot safer.

And any candidate for federal office who does not endorse its repeal — like
every person who voted for its passage — is a candidate not fit to govern.

Aziz Huq directs the Liberty and National Security Project at the Brennan
Center for Justice . He is co-author of Unchecked and Unbalanced:
Presidential Power in Times of Terror (New Press, 2007), and recipient of a
2006 Carnegie Scholars Fellowship. This article, originally posted here
Thursday, is updated to reflect Thursday’s Senate vote on the Military
Commissions Act.

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