While You Were Sleeping

[Jcrowley]

Among other things, the Act will:

* Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an “enemy combatant”. Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.

* Permit the executive to convene military commissions to try “alien unlawful enemy combatants”, as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.

* Permit the use in military commission trials of evidence extracted under cruel, inhuman or degrading treatment or punishment.

* Give the military commissions the power to hand down death sentences after trials that did not meet international standards.

* Permit the executive to determine who is an “enemy combatant” under any “competent tribunal” established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.

* Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.

* Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under international law. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".

* Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.

[MannyGoldstein]

1. I Wish I Was Sleeping

Then I could call it a nightmare. But it's real life.

And you know what else is real? The Congressional "Democrats" who refused to fight tooth-and-nail aginst this outrage. And who refused to try to censure the President for this evil garbage.

[Jcrowley]

2. Yes

What congressional dems are demonstrating is far worse than softness on terrorism-- it's acceptance of totalitarianism. This bill is a shameful attack on basic civil rights. More to the point, it is an attack on some of the most fundamental principles that this country stands for. Habeas corpus is absolutely necessary to prevent despotism-- it is the strongest line of defense against unlawful detention. It is the foundation of our system of justice because it gives the accused the right to question why they are being detained-- and it compels the government to release them if it cannot provide evidence justifying their detention. It is incomprehensible to me that patriotic men and women would stand silent while the foundation of our nation's system of fair justice is torn down. If Goodman's report is true, congressional dems are shamefully selling our nation's future for the most illusionary of short term political expediencies. In their rush to appear strong on national defense, they will participate in the nation's destruction.

National security is about much more than creating a security state in the U.S. It is first and foremost about protecting the principles that distinguish the U.S. from dictatorships and the regimes of petty despots. That Americans would be willing to throw away their principles so cheaply is galling enough, but our leadership's cowardice in wanting to avoid a political confrontation over it is far worse. I am ashamed that we are even having this conversation in America-- I am even more deeply ashamed that my leaders don't think protecting our fundamental human rights is important enough to even make any noise about.

If this bill passes we will all be "illegal enemy combatants." Do not doubt that this administration will go to such extreme lengths to silence its critics-- after all, who would have believed that we would be having this debate in the first place just a few years ago? If this bill passes our representatives in congress will have used OUR authority to strip away the very principles that America stands for, in essence signing our names to the death certificate of democratic ideals.

[WillyT]

3. Most Congress Critters Didn't Bother To Read The Patriot Act Either !!!

Hope they're all paying more attention this time around.

:shrug:

[MannyGoldstein]

4. Can We Keep It?

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly:

"Well Doctor, what have we got, a republic or a monarchy?"

"A republic -- if you can keep it" responded Franklin.

The lack of an actual opposition to the Rethugs is an enormous problem. I wish Dr. Dean well in his quest.

[Jcrowley]

5. Seems unlikely

“The United States could detain more foreigners as enemy combatants under legislation Congress will debate this week after a last-minute change in the bill, lawmakers said on Tuesday,” reports Reuters. “Republican Sen. Lindsey Graham, a key negotiator on the bill, said enemy combatants would now include those who provided money, weapons and other support for terrorist groups as well as those involved in actual operations.”

Of course, many would argue that the key word here is “foreigners” and this legislation poses no threat to Americans. However, considering previous comments of “key negotiator” Lindsey Graham, we can likely expect this legislation to be used against “fifth columnists,” as the good senator from South Carolina deems all who oppose the neocon doctrine of forever war.

As Graham told the Senate Judiciary Committee in February, “the administration has not only the right, but the duty, in my opinion, to pursue fifth column movements…. And let me tell folks who are watching what a fifth column movement is. It is a movement known to every war where American citizens will sympathize with the enemy and collaborate with the enemy. And it’s happened in every war,” never mind that this particular war is undeclared. Naturally, for the neocons, simply opposing the “war” in Iraq and the parallel “war” against terrorism at home is an act of sympathizing with the enemy, that is to say “al-Qaeda,” the black op pseudo gang crafted by the CIA and the Pentagon.

[Jcrowley]

6. Tidbits

ON DETAINEE LEGAL RIGHTS

The Definition of 'Unlawful Enemy Combatant'
The bill expands the definition of unlawful enemy combatants to include people who have "purposefully and materially supported hostilities" and people who have been declared enemy combatants under Combat Status Review Tribunals, "or another competent tribunal established under the authority of the President or the Secretary of Defense." Under this new language, people in the United States who are not American citizens could be declared unlawful enemy combatants and held indefinitely without trial.

Habeas Corpus
The bill prohibits detainees held by the United States from filing lawsuits challenging their detention, known as habeas corpus pleadings. This wipes out both pending and future lawsuits, and it would apply to people picked up anywhere in the world, including the United States.
The provision is significant. Habeas corpus is an ancient protection that stems from English common law, and its use dates back to as early as the 12th century. In 1969, the Supreme Court called it "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Sen. Arlen Specter (R-PA) introduced an amendment to remove this part of the legislation. He argued that the ability to challenge one's detention is one of the most fundamental rights enshrined in the Constitution. The proposed amendment failed.

ON THE GENEVA CONVENTIONS

Coercive Interrogation Tactics
The bill prohibits "grave breaches" of Common Article 3 of the Geneva Conventions. That includes "cruel or inhuman treatment." But many legal analysts and government officials believe the definition of cruel or inhuman treatment as written in the bill does not encompass some of the severe interrogation tactics that the CIA has reportedly used against terrorism suspects. The bill also prohibits enemy combatants from filing lawsuits claiming a violation of their rights under the Geneva Conventions. That could make it difficult to hold accountable those who do engage in torture.

Presidential Power
The bill gives the president the power to "interpret the meaning and application of the Geneva Conventions." Critics fear this means that the president can unilaterally authorize interrogation techniques that many people would consider torture.

War Crimes Act
The legislation would narrow the range of offenses prohibited under the War Crimes Act. This would protect civilians (such as CIA interrogators and White House officials) from being prosecuted for committing acts that would have been considered war crimes under the old definition. The change is retroactive to 1997, which means any crimes committed since 1997 would be prosecuted under the new standard, not the old one.

ON MILITARY COMMISSIONS

Evidence Obtained Through Coercion
If an enemy combatant made a statement under coercion before Congress passed the Detainee Treatment Act in 2005, the evidence is admissible at a military tribunal in most cases. If the statements were made after Congress passed the 2005 ban on coercive interrogation tactics, the evidence is admissible only if a military judge finds that "the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution."

Secret Evidence
The first draft of this legislation said that defendants could "examine and respond" to all of the evidence against them at a military tribunal. Now it says only that defendants can "respond" to all evidence. The full implications of this phrase aren't entirely clear. Defense lawyers will likely argue that defendants can't respond to evidence they haven't been able to examine.

Hearsay Evidence
Hearsay evidence is generally acceptable at military tribunals. A judge has to rule that the evidence is reliable and relevant to the trial.

[Jcrowley]

7. Included in the bill...

Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday, are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.

At the same time, the bill immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of detainees who the military and the CIA captured before the end of last year. It gives the president a dominant but not exclusive role in setting the rules for future interrogations of terrorism suspects.

[Jcrowley]

8. Buried...

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

[annabanana]

9. New Jersy should be ashamed!

BOTH Democratic Senators from NJ voted FOR this abomination. I was astounded!

[jhain]

15. Not ashamed

INFURIATED.
I watched it unfold. When I heard BOTH of my Senators' names I threw furniture around the place.

[KharmaTrain]

10. I'm Soooo Tired Of Hearing...."I've Got Nothing To Hide"

While canvassing I ran across a semi-resonable dude who once supported Iraq and now is thisclose to voting Democrat cause of all the bungling and lies about the war. But one area he has no problem with is the torture resolution. There's still a good number of sheeple out there who believe that this country is either "at war" or "under attack" and that since they kept their nose clean (or so they think) they have nothing to hide. It's a naive view but it is out there and held by many people very confused about what this really means. The only see it as a "them" thing and that it has no domestic or personal applications.

The best thing is to work on getting a Democratic majority and put the repeal of this abomination toward the top of a very big list of things to repeal about this repealing regime.

[GregD]

11. What's the source of this summary please?

Did you create this analysis or did someone else? I want to post it to our local Dem site but I check everything for accuracy before I do so.

[Jcrowley]

12. I've synthesized analysis

from numerous sources and compiled some of the more salient points. I'm currently working on an article concerning this bill. If you wish I can give you several sources to draw from later tonight. You can PM me.

[Jcrowley]

13. William Shirer reminds us....

William L. Shirer, author of The Rise and Fall of the Third Reich, explains how tribunals operated under fascism. Hitler’s courts

consisted of three judges, who invariably had to be trusted party members, without a jury. A Nazi prosecutor had the choice of bringing action in such cases before either an ordinary court or the Special Court, and invariably he chose the latter, for obvious reasons. Defense lawyers before this court, as before the Volksgerichtshof, had to be approved by Nazi officials. Sometimes even if they were approved they fared badly. Thus the lawyers who attempted to represent the widow of Dr. Klausener, the Catholic Action leader murdered in the Blood Purge, in her suit for damages against the State were whisked off to Sachsenhausen concentration camp, where they were kept until they formally withdrew the action.

As the above quoted Shirer writes: “The overwhelming majority of Germans did not seem to mind that their personal freedom had been taken away, that so much of culture had been destroyed and replaced with a mindless barbarism…. The Nazi terror in the early years affected the lives of relatively few Germans and a newly arrived observer was somewhat surprised to see that the people of this country did not seem to feel that they were being cowed…. On the contrary, they supported it with genuine enthusiasm. Somehow it imbued them with a new hope and a new confidence and an astonishing faith in the future of their country.”

[Jcrowley]

14. Detainee Measure to Have Fewer Restrictions

Detainee Measure to Have Fewer Restrictions
White House Reaches Accord With Lawmakers

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, September 26, 2006; Page A01

Republican lawmakers and the White House agreed over the weekend to alter new legislation on military commissions to allow the United States to detain and try a wider range of foreign nationals than an earlier version of the bill permitted, according to government sources.

<snip>

As a result, human rights experts expressed concern yesterday that the language in the new provision would be a precedent-setting congressional endorsement for the indefinite detention of anyone who, as the bill states, "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or its military allies.

The definition applies to foreigners living inside or outside the United States and does not rule out the possibility of designating a U.S. citizen as an unlawful combatant. It is broader than that in last week's version of the bill, which resulted from lengthy, closed-door negotiations between senior administration officials and dissident Republican senators. That version incorporated a definition backed by the Senate dissidents: those "engaged in hostilities against the United States."

The new provision, which would cover captives held by the CIA, is more expansive than the one incorporated by the Defense Department on Sept. 5 in new rules that govern the treatment of detainees in military custody. The military's definition of unlawful combatants covers only "those who engage in acts against the United States or its coalition partners in violation of the laws of war and customs of war during an armed conflict."

Kate Martin, director of the Center for National Security Studies, said that by including those who "supported hostilities" -- rather than those who "engage in acts" against the United States -- the government intends the legislation to sanction its seizure and indefinite detention of people far from the battlefield.

http://www.washingtonpost.com/wp-dyn/content/article/2006/09/25/AR2006092501514.html

[tex-wyo-dem]

16. And now we understand the full gravity of why Alito was installed...

and why the Dems should have filibustered his ass...

<snip>

In December 2005, for instance, Bush used a signing statement to blunt the impact of the McCain amendment banning cruel, inhuman and degrading treatment of detainees in U.S. custody. When Bush signed the bill, he reserved the right to bypass the law under his commander-in-chief powers.

“The Executive Branch shall construe in a manner consistent with the constitutional authority of the President . . . as Commander in Chief,” the signing statement read. In other words, since Bush considers his commander-in-chief authorities boundless, he can choose to waive the torture ban whenever he wants.

“The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,’” said New York University law professor David Golove.

Since signing statements essentially assert the President’s right to interpret the law as he sees fit, the concept also challenges the traditional authority of the judiciary to act as final arbiter of legal disputes, an American check and balance that has served as a bulwark against Executive tyranny for more than two centuries.

But judging from Alito’s past statements, he’s an advocate of expanded Executive power. In arguing for the “unitary executive” and interpretive signing statements, Alito wrote in 1986 that “since the President’s approval is just as important as that of the House or Senate, it seems to follow that the President’s understanding of the bill should be just as important as that of Congress.”

http://www.consortiumnews.com/2006/010906a.html

[Individualist]

18. Exactly!

When Alito was confirmed, I knew things like this would happen. We can only wonder what's next. Sometimes I hate being a realist. :(

[Jcrowley]

19. Precisely

There are some who naively think the Supreme Court will effortlessly strike this down without understanding all the hoops involved and how profoundly the higher courts have been corrupted by the hard right. This is perhaps the ultra-conservatives most all-encompassing achievement since the Reagan era. Not good.

Here's more:
Bush's Chilling New Definition of "Unlawful Enemy Combatant

A BUZZFLASH GUEST CONTRIBUTION

by Elliot D. Cohen, Ph. D.


George W. Bush has repeatedly warned, "Either you're with us or you stand with the terrorists." Now he has gotten through legislation that allows him to back it up. On Thursday, September 28, 2006, in a hastily drawn decision that will likely live in infamy, the Senate nodded assent to the Military Commissions Act (PDF).

According to this Act, an "unlawful enemy combatant" is to be defined as:


"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."
This basically means that if a person is not a soldier in the service of a foreign government, but is nevertheless engaging in "hostilities" against the United States, then this person is an unlawful enemy combatant. Notice that this definition does not require that such a person be an "alien," which accordingly leaves open the possibility that this designation could also be applied to an American citizen.

This definition as contained in the approved version of the Act, is substantially broader than that included in an earlier version (PDF), according to which a person so designated must also be

(A) part of or affiliated with a force or organization-including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces-engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.

According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? What about an American journalist who publishes leaked information damaging to the Bush administration? What about an anti-Bush blogger? In short, the definition is broad (and vague) enough to include any American citizen who is acting in a way the President deems "hostile" to the United States. As such, it is difficult to imagine a single piece of legislation with greater potential to undermine freedom and democracy in America.

http://www.buzzflash.com/articles/contributors/442

[tex-wyo-dem]

20. Really, truly chilling indeed...

Unbelievable that the House and Senate would pass this with really very little discussion or debate. How in the world could the Dems and conscious Reps (if there are any left) possibly allow this to go through at all...

Question: Is there any way a Democratically controlled congress could abolish or rescind a bill once already signed into law, or is the SCOTUS the only body that can do that?

[cool user name]

17. Kicked and recommended ...

[Jcrowley]

21. A Look To The Future

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). 

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

[chill_wind]

22. K&R nt

[Jcrowley]

23. Is Right-Wing America Becoming Fascist?

There are other lesser, more stylistic similarities to fascism that have reared their head among American conservatives as well:
· A propensity to view the weak with contempt; to associate weakness with femininity; and to excoriate the feminine and glorify the masculine. “Girlie men” was only the tip of the rhetorical iceberg in this regard.
· A fondness for depicting their enemies and their opposition as objects fit for elimination. In some cases, they are described as animals – typically either vermin or vicious killers. A secondary, but much more common, version of this is to identify them with the nation’s enemies.
· A resulting eliminationist rhetoric advocating the utter exclusion of entire blocs of the electorate, especially immigrants and the gay and lesbian community, as well as, on an even broader scale, liberals generically.