by Eric Gordon
(CV #39, January 2007)
Justifications for the Act
Provisions of the Act
The Military Commissions Act is another brick
in the building of a police state society
. Since September 11th 2001, the U.S. government has been openly holding as many as 14,000 prisoners as legal non-entities. They are held at Guantanamo Bay, Abu Ghraib and other prisons around the globe (Abu Ghraib became notorious only because the jailers lacked the sense to be ashamed of the horrors they were perpetrating, and documented it for the entire world to see). Recent and ongoing reports of horrors at the Battlefield Interrogation Facility near Baghdad show the lie that somehow Abu Ghraib was a unique case. On the assertion that these people are terrorists, the Bush administration has claimed the right to simply declare them enemy combatants. According to Bush and Co. , this declaration means that they can salt them away, essentially forever, without charge, without access to the courts, without lawyers, and without visits from human rights organizations.
. Defenders of the policy argue that these people are non-U. S. citizens and apparently therefore aren't allowed basic human rights, but in reality a handful are citizens. (1) But, U. S. citizens or no, the policy amounts to an egregious abuse of their rights as human beings.
. Following the September 11, 2001 terrorist attacks, and ever since, the Bush administration has rounded up hundreds of mostly immigrant Muslims, shutting down small businesses and freezing accounts. These actions were allowed under the Anti-Terrorism and Effective Death Penalty Act, signed into law by Clinton. Most of those detained remain held at Guantanamo five years later. Since then, during the prosecution of the wars in Afghanistan and Iraq, the U.S. government has added to these domestic detainees thousands of Iraqi, Afghani and other prisoners, some having a connection to the resistance to these invasions, but many not. Both before and since the Abu Ghraib scandal broke, many of them have been tortured during their imprisonment.
. This policy created a problem for the Bush administration, as both mass pressure and legal pressure mounted, to either charge and prosecute them, or to let them go. Open, fair trials, in which the torture and maltreatment would be brought before the public, were not permissible. To get around this problem, Bush administration lawyers argued that since we are at war, since the enemy ("terrorism") doesn't wear uniforms, and since the enemy is not a signatory to the international treaties governing the treatment of prisoners, they are essentially non-persons, with no rights whatsoever. (2) Given that the prisoners have not been convicted of anything (in fact, most have not even been charged with anything), this amounts to conviction on the President's say-so. But eventually even the right-wing Supreme Court ruled that this was not acceptable: in June of 2006, in the case of Salim Ahmed Hamden, the Supreme Court ruled against the Administration's claim. In response, the Republican-controlled congress passed the Military Commissions Act (MCA) in September of 2006, in essence codifying the Administration's assertions in law, and giving the President essentially everything he wanted.
. The MCA was passed during the election season by a Republican-controlled congress.
Republicans voted overwhelmingly for the bill. However the Democrats cannot escape blame. A
significant minority of Democrats voted for the Act, and, although Democrats made a great show
of decrying the Act as a new "greatest threat" to "our way of life", don't expect them to overturn
it any time soon, even now that the Democrats hold majorities in both houses. Soon after the
midterm elections, the Democrats announced that their main agenda for the next two years would
not be to fight to undo all of the reactionary legislation passed over the last 6 years, but to
position themselves for the Presidential elections in 2008. Overturning all of that legislation over
which they have wrung their hands the last 6 years (when they weren't lining up to vote for it)
isn't a priority -- no, they have their eye to the next "anybody but . . . " campaign, and on trying to
prove their ability to take over and prosecute the Global War On Terror more effectively. All of
this shows just how serious their supposed opposition is to the Bush administration's program.
Justifications for the Act
. The neo-conservatives try to justify their extreme and brutal policies, in the war on Iraq, in the Global War on Terror, in the repressive laws they have passed, by stating that "the war on terror is a battle for the future of civilization" (VP Dick Cheney). This rhetoric is supposed to imply that whatever extreme measures are taken, are by definition justified.
. However, they also project that the Global War on Terror is a generations-long war. Thus justification that "we are at war" means that sections of the bourgeoisie see these legal and extra-legal measures as semi-permanent changes in the structure of bourgeois democracy in the U.S. Imperialism really is reaction all down the line, reaction which can only be opposed by a mass movement fighting it on all fronts. This reaction includes Bush's domestic spying program, the Patriot Act, Clinton's Anti-Terrorism and Effective Death Penalty Act, and numerous other policies and laws. Along with the Military Commissions Act, these are geared to give the government a free hand to engage in its imperialist struggles to control ever-greater parts of the world's resources, on behalf of the U. S. bourgeoisie. In this context, the Military Commissions Act is a step further down the road of greatly expanded police powers at home, and military powers abroad.
. It is acknowledged, even by some of those who voted for the Act, that it contains several
provisions which will not survive a court challenge, even a challenge before the ultra-rightist
Roberts Supreme Court. For example, Senator Arlen Spector, after saying that the bill was
"patently unconstitutional on its face", then argued that "the court will clean it up", to explain his
vote in favor of the Act. One of many "patently unconstitutional" features is a provision that the
legality of Act cannot be reviewed by the courts, so it will be interesting to see how that battle
Provisions of the Act
. While bourgeois democratic rights are always and everywhere circumscribed, limited, and have exceptions, the rights which do exist are important for the working class, and need to be defended. These rights have been hard-won, through battles in the streets, through the blood of those gunned down by the cops, through mass actions through history. Greater democratic rights means a greater field within which to organize and fight, not only for reforms, but also for an end to bourgeois society as a whole, and the whole array of abuse and exploitation required by capitalism. Provisions of the Military Commissions Act undermine bourgeois democratic rights in a serious way:
. * The Act defines an unlawful enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities" against the United States. This is a pretty vague and broad definition. Is attending a demonstration against the Iraq War "purposefully and materially supporting hostilities" against the U.S.? What about writing or publishing an article in favor of the armed resistance in Iraq? What about sending donations to a political group or charity which has done such actions?
. * As mentioned above, the Act specifies that it cannot be challenged in court. It declares that "no court, justice, or judge" has jurisdiction "to hear or consider any claim or cause of action whatsoever" relating to military commissions, "including challenges to the lawfulness of procedures of military commissions". In other words, according to the Act, challenges to the constitutionality of the Act itself are prohibited. This is a new gambit in the ongoing struggle over a more powerful and dictatorial Presidency.
. * The same paragraph prohibits all judges, in all courts, from hearing habeas corpus(3) claims on detention of aliens declared to be unlawful enemy combatants. The result of this is that as soon as the government declares someone to be an unlawful enemy combatant, immediately they cannot challenge the lawfulness of their detention. So in practice, even in a case of mistaken identity, a detainee has no recourse whatsoever. Technically the cancellation of habeas rights applies only to non-citizens. However, it is unclear how, and before whom, a U.S. citizen mistakenly declared to be an alien unlawful enemy combatant would challenge his/her detention, since habeas corpus hearings are the accepted way of doing so. Especially when there is no provision for a speedy trial, a detainee might well sit in Guantanamo for years being interrogated before being brought before a commission, as several thousand prisoners have already.
. * There is a strange hole in the Act regarding citizens charged with being unlawful enemy combatants. As stated above, the definition of "unlawful enemy combatant" is someone who has "purposefully and materially supported hostilities against the United States". This definition makes no distinction between U.S. citizens and non-U.S. citizens in this regard. The Act then continues to discuss Military Commission jurisdiction over alien unlawful enemy combatants, possible punishments for alien unlawful enemy combatants, and so forth. It never states what happens to those declared to be unlawful enemy combatants, who might also be U.S. citizens. The example of Jose Padilla, a U.S. citizen held for 21 months without charge as an unlawful enemy combatant, makes it clear that this is not an idle question. He has since been transferred to the civilian judicial system, as the Administration tries to avoid a losing legal battle.
. * Trials by military commission may also be held in secret. A judge may close all or any part of the proceedings if they find that national security or individual safety warrants it. A secret trial in which all participants are barred from releasing any information to the public about the proceedings (perhaps under penalty of "purposefully and materially supporting hostilities"?) is a recipe for railroading people into the new American gulags.
. * As mentioned above, detainees are not guaranteed a speedy trial. In fact, the Act explicitly exempts military commissions from requirements for a speedy trial, meaning that in addition to having no recourse to challenge the lawfulness of one's detention, those declared unlawful enemy combatants can be held forever, or until hell freezes over, without acess to the courts. The preamble to an earlier version of the bill argues that "during wartime" it isn't practicable to gather evidence on the battlefield. Given that this war, the global war on "terrorism", is projected to last for generations to come, and the battlefield is seen to be the entire globe, this is a wide-open invitation to let untold thousands of people rot forever without trial. Meantime, accounts of the handful of people released from these prisons make it quite clear that they are not being held as suspects, but are assumed to be guilty, and are interrogated and tortured. In practice, they are presumed to be guilty until proven innocent.
. * Using the same justification as above, that it is impractical to bring witnesses to testify at these military commissions, the Act also allows hearsay evidence in military commission trials. Although in civilian courts there are exceptions to rules barring hearsay, the basic protection is an important one, allowing the accused to cross-examine their accuser. It is very difficult to dispute the reliability of evidence presented by someone who wasn't there. What were the conditions, the visibility, the lines of sight, etc. when the event happened? What is the reliability of the witness, do they have a grudge against the accused, or were they tortured into making the statement? These are questions which are very difficult for the accused to establish without being able cross-examine the witness.
. * It further declares that these detainees cannot be trusted with seeing the evidence against them. In a major breach of civilian trial procedures, where a lawyer can be disbarred for failing to share all of the evidence with the defendant, under this Act, the defense lawyer is barred from sharing any classified evidence with the accused. How does the defendant answer an accusation that they were training at a terrorist camp in Afghanistan, for example, when they cannot hear the evidence the government has that they were there?
. * The Act also declares that prohibitions on compulsory self-incrimination are not applicable to military commissions. While a person on trial before a military commission cannot be compelled to testify, various forms of coerced statements are admissible, and a defendant cannot argue that he or she was compelled or coerced as an argument for excluding the statement. Those people who were held, tortured, and then released, often report that, after weeks or months of harsh treatment, they are ready to confess to anything. There is a provision that statements obtained under torture cannot be used as evidence, but it makes no such prohibition regarding statements obtained under coercion that falls short of torture. And once a confession is made, it is admissible, and the defendant cannot apparently recant it.
. * The Act also rejects the Geneva Conventions as protection for those held and prosecuted under this Act, stating that "No alien unlawful enemy combatant subject to trial by military commission . . . may invoke the Geneva Conventions . . . as a source of rights". (4) Most salient among the Geneva Convention provisions is the prohibition on torture. This is a measure most probably added to protect the torturers from being sued for violations of human rights and being prosecuted for war crimes.
. As much word-chopping as has been done about the definition of torture, it should be made clear, there is no doubt that what various released prisoners describe is in fact torture:
. The government claims that these stories are lies, told by the propaganda machines of the enemy. However, remember, the stories come from the few men who have been released because the government concluded that they were innocent. (5) Even though the U. S. government denies ever holding them, enough of their stories can be corroborated that there is little doubt that the outrages these men tell are in the main true.
. * Notable among practices not addressed in this act is any legal position on the grotesque practice called "extraordinary rendition", an extra-legal practice started under the Clinton Administration. Extraordinary rendition involves flying prisoners to other allied and semi-allied countries, such as Egypt, Syria, Jordan, Uzbekistan and other countries, where torture is fully legal, for the purpose of subjecting them to full, unimpeded torture (as opposed to the curtailed version practiced by U. S. military jailers). (6) Extraordinary rendition has recently gotten a degree of coverage in the bourgeois media. This is due to the Bush Administration's vast expansion of the practice, and due to the Administration's use of military bases in Europe for transporting these prisoners, over the objections of those European allies. However, the Military Commissions Act has not one word to say on this topic although (or perhaps one should say, because) the whole issue has become something of an embarrassment to the government due to its having mistakenly shipped several innocent people off for torture only to later discover they are innocent. Presumably, they were told on release, "Ooops, sorry, we thought you were someone else". (7)
. * In addition there is the disposition of "ghost prisoners", prisoners held but not acknowledged
by the CIA or other U. S. agencies. These are the disappeared of the global war on terror, excised
from all lists of detainees held and shifted from one prison to another to keep them from gaining
contact with human rights agencies. The status of these prisoners is also not addressed in the Act.
The Military Commissions Act is another brick
in the building of a police state society
. Various liberal bourgeois commentators and politicians commonly declare that the MCA represents a complete breach of everything which the U.S. stands for: freedom, justice, and apple pie. Yet, in the real world, the Act exists in the context of decades of building up police state measures, and decades of erosion of democratic rights, attacks on immigrants, and attempts to drive a wedge between U.S. workers and immigrants. Specifically, there has been an on-going struggle among sections of the ruling class over the degree to which the U.S. is bound to recognize the democratic rights of non-citizens. During times of war, the ruling class has historically ramped up its attacks on both aliens and U.S. citizens as well, one of the first cases in this country being the Alien and Sedition Acts passed in the late 1700's (of which the Alien Enemies Act is still in effect). The Sedition Act applied to both citizens and non-citizens, and prohibited criticism of the government, as well as writing to "incite . . . resistance to the United States". A later infamous example is the internment of Americans of Japanese descent during WWII.
. Yet, the Military Commissions Act does make legal some horrendous abuses of basic human rights, for those declared to be illegal enemy combatants. And there is no great divide between treatment of non-citizens, and the treatment of citizens. A look at the treatment of the mainly black and poor prisoners held in U. S. Department of Corrections prisons around the country, especially in Secure Housing Units (super-maximum security facilities within the U. S. prison system) reveals how true this is. Many of the architects of the Abu Ghraib torture scandal at every level were in fact involved in prisoner abuses in U. S. prisons before being sent to Iraq, and many of the abusive techniques documented in Iraq were first developed in U.S. prisons. (8) Similarly, the discarding of habeas rights for alien unlawful enemy combatants has its counterpart in the significant curtailment of habeas claims for everyone, U.S. citizens included, encoded in the Anti-Terrorism and Effective Death Penalty Act. This Clinton-era law was something of a precursor to the Patriot Act, and encoded a significant diminishment of habeas rights across the board. (9)
. Every one of these reactionary measures paves the way for ever more reactionary measures; paves the way for the erosion of rights for workers, the poor, people of color, and other groups which are not organized to fight these erosions. Some of those 14,000 held by the U.S. government in the current global war on terror are clearly fundamentalist religious leaders, and thus no friend of the workers anywhere. However, for the above reasons, even if it only affected right-wing fundamentalist leaders, it would still be a reactionary act. Just as clearly, though, many prisoners are simply innocents caught up in neighborhood sweeps and security checkpoints, or workers fighting the U.S. imperialist attacks on their lives, striking for decent wages under the occupation regime, and/or fighting for basic democratic rights in their own country. The U.S. broad-brush painting of these prisoners as "terrorist" and "the worst of the worst" seeks to cover over that they often have no idea who they are holding.
. The Commissions Act, the Patriot Act, the Anti-Terrorism and Effective Death Penalty Act, "good faith" exceptions to unwarranted search and seizures by the police, warrantless monitoring of emails, phone calls (and apparently soon U. S. mail) by the Feds, and other recent laws and policies, all add up to the building of a police state. As people become inured to stories of torture policies in Iraq and Guantanamo, it becomes that much easier for the government to get away with inhuman conditions in U. S. prisons, and other repressive domestic policies.
. Workers must fight every attack on democratic rights launched by this government, and fight vigorously. We need mass demonstrations in the streets and other forms of mass struggle to fight against torture of prisoners held in secret prisons around the globe, against the secret prisons themselves, and against fascist policies such as the Military Commissions Act. Attacks on immigrant workers and workers in other countries must be fought as vigorously as those on U.S. citizens. Workers should not be lulled into a sense of security because supposedly the Commissions Act only affects non-citizens. The denial of basic rights for non-naturalized U.S. immigrants and other non-U.S. citizens, far from protecting U.S. citizens, as the reactionaries assert, diminishes rights for all workers and poor everywhere. On the other hand, the more we organize mass struggles against these repressive policies, the harder it is for the government to get away with any of them.
(1) "American Recalls Torment as a U.S. Detainee in Iraq", New York Times, 12/18/2006, p. 1,
col. 5. This article documents the case of a private contractor turned whistle blower who was
held for three months and deprived of sleep. A synopsis of the article is also available online at
F50A12FB38550C7B8DDDAB0994DE404482&showabstract=1 for free, though there is a fee to see the whole article online. (Return to text)
(2) International Law is clear that combatants have these basic rights, regardless of uniform, regardless of whether they are signatories. However, International Law is nothing more than an arena for the bourgeois powers to fight out their imperialist struggles, so it is vain to hope that international bodies such as the U. N. will force the U. S. to submit to its dictates. (Text)
(3) Habeas Corpus is a legal convention dating from the late 17th century British law (and has a history which goes back much further, to the Magna Carta and 12th century Anglo-Saxon law). (Text)
(4) Earlier versions of the bill stated that "No person in any habeas action or any other action may invoke the Geneva Conventions . . . as a source of rights . . . in any court of the United States". Presumably this was seen as too sweeping. (Text)
(5) A Google search for the cases of Khaled el-Masri, Maher Arar, and Laid Saidi, reveals some of the horrors perpetrated on U.S. prisoners subject to extraordinary rendition. The cases of Murat Kurnaz, Omar Deghayes, and Jumah al-Dossari reveal examples of the treatment of prisoners strictly under U.S. custody. Reports of detainee treatment come from the abused detainees themselves, after they have been released, or from other released detainees who witnessed the torture. When the U.S. has released detainees, it has often been by transferring them to allied governments, which have in turn released them. In any case, by releasing them the U.S. government has tacitly agreed that they are innocent, while at the same time never admitting an error in holding them. For a discussion of the legal status of released detainees, see http://email@example.com/msg21120.html. (Text)
(6) For a good history, see "Outsourcing Torture",
(7) For one example, see "Algerian Tells of Dark Term in U. S. Hands",
(8) For some reports of this process of hiring the worst abusers in U. S. prisons to "reform" Iraqi prisons, see:
(9) For a discussion of the effects of the Anti-Terrorism and Effective Death Penalty Act on
appeals and habeas rights, see
http://www.vote.com/magazine/editorials/editorial3307499. phtml. (Text)
February 25, 2007.