Detention and Torture: Are We Still Free, or Not?

Just as great as the vitriol coming from presidential critics right now, is the mixture of signals from the activist media regarding the Military Commissions Act signed by Bush last Tuesday.

Friday night, on Bill Maher's Real Time, Maher indicated that, as the result of the so-called "Detainee" bill (aka the Military Commissions Act) passed by Congress on September 28th, we could all get tossed into prison indefinitely without recourse according to the whim of the President. Maher panelist Representative Barney Frank seemingly seconded Maher's opinion. A September 30th New York Times article quoted Bruce Ackerman, a professor of law and political science at Yale, as saying that the bill "allows the administration to declare even a U.S. citizen an unlawful combatant subject to indefinite detention."

An All Things Considered piece on NPR broadcast on September 29th by Ari Shapiro, titled, "Bill Lets U.S. Citizens Be Held as Enemy Combatants," attempts to parse the distinctions between the treatment of non-citizens and citizens who are declared "enemy combatants." Bradford Berenson, a former White House lawyer for the current President Bush, is quoted as saying, "U.S. citizens can be detained as enemy combatants if they take up arms on the side of al-Qaida. But they get some extra judicial protections in that case." Shapiro comments, "The legislation that Congress passed does not say enemy combatants are people who 'take up arms on the side of al-Qaida.' The bill instead refers to people who provide 'material support' to the enemy. The language of the bill says that is the standard for both citizens and non-citizens."



In a September 29th discussion on Amy Goodman's popular lefty broadcast show, Democracy Now, Michael Ratner, President of the Center for Constitutional Rights, said, "what it gives him [the President] is the power... to detain any person anywhere in the world, citizen or non-citizen, whether living in the United States or anywhere else. I mean, what kind of authority is that? No checks and balances. Nothing." But Ratner does acknowledge, "Now, if you're a citizen, you still get your right of habeas corpus."

Over on the right, on Instapundit, Glenn Reynolds reassured that, "I've seen some people calling this an abolition of habeas corpus, but as I understand it, habeas is suspended only with regard to non-citizens. This removes a key danger of abuse, since the potential politically-motivated abuses that are most worrisome involve U.S. citizens, not aliens."

Reynolds also pointed to a piece by Jack Balkin on Balkinization, that analyzes what aspects of the bill apply to US citizens. Balkin, according to Reynolds, shows that, "the habeas-stripping procedures only apply to aliens, but other provisions regarding unlawful combatants may apply to U.S. citizens."

Drifting further from the mainstream, on October 4th on the Information Clearing House site, Chris Floyd wrote, "It was a dark hour indeed last Thursday when the United States Senate voted to end the constitutional republic and transform the country into a Leader-State, giving the president and his agents the power to capture, torture and imprison forever anyone — American citizens included — whom they arbitrarily decide is an 'enemy combatant.'"

Given the confusion regarding the direct legal impact of this bill on US citizens, I contacted Caroline Fredrickson, the Director of the ACLU Washington Legislative Office, to get her take on the bill. Although Fredrickson dispels some of the more alarmist views regarding this legislation, I would hesitate to say that I found Ms. Fredrickson's responses reassuring.

Even before the Bush administration began gnawing on the carcass of our constitutional liberties, the ACLU said this about a 1996 anti-terrorism bill passed by President Clinton. "With the stroke of a pen, President Clinton today crippled the century old authority of the federal courts to enforce the Bill of Rights," the ACLU said in a statement. At that point, banks were authorized to freeze assets of American citizens and organizations suspected of being agents of a declared terrorist group. Citizens, even then, apparently had no recourse to challenge that designation. Since then, of course, from the 2001 Patriot Act to this so-called "Torture Bill," the hits have just kept coming. The new wrinkle seems to be legalizing anything the Administration does after the fact. I don't know about you, but I demand a sweet deal like that for myself.

There is some hope that the next president may not want all that power. Of the potential presidential candidates currently in the US Senate, Democrats Bayh, Biden, Clinton, Feingold, Kerry, and Obama all voted against the bill. Republican John McCain voted in favor of it. Power, however, tends to do strange things to people (particularly people named Clinton), so I wouldn't place much faith in a change of administrations.

RU SIRIUS: While most of the news coverage of the recent "Detainee" bill focused on its impact on torture and on the detention of non-citizens, very little has been said about those things that apply to US citizens. As I read it US citizens can be held indefinitely without any recourse.

CAROLINE FREDRICKSON: It is our understanding that this bill does not authorize the detention or military commission trial of US citizens. Both the stripping of habeas rights for challenges to detention and being subject to the jurisdiction of the military commissions themselves are specifically limited to aliens who are designated as unlawful enemy combatants. U.S. citizens are excluded from both of these potential consequences. Moreover, the congressional record includes statements by important Members of Congress that this bill does not apply to U.S. citizens.

The real problem is that this administration has shown no respect for the letter of the law or the intent of Congress and has time and again twisted the words of our laws, or ignored them altogether. The rush by Congress to pass this act before the elections compounded that problem. This is a bad bill in countless ways and given this administration's propensity to stretch the meaning of the law, the ACLU and its allies will monitor to ensure that the White House does not attempt to use these extraordinary powers against Americans and we will vigorously oppose any attempt to detain citizens on the basis of this bill.

RU: The definition of "unlawful enemy combatant" is applied to those who have "purposefully and materially supported hostilities against the United States." By my reading, this could be used against dissidents and whistleblowers. For instance, it could have been used against the New York Times for their revelations about the administration's global financial surveillance program. (See NY Times apology) Would you agree?

CF: Regardless of what the bill says, the constitutional guarantees of liberty and a free press would prevent the president from taking retaliatory actions against the New York Times or any other media outlet. In addition, the bill itself could not be applied in that way. However, we understand the concerns; after all, this is an administration that believes that the Authorization for the Use of Military Force gave it license to toss the Foreign Intelligence Surveillance Act out the window and spy on Americans. This president will likely continue to interpret laws in outlandish and unconstitutional ways. But the reality remains that the president is not above the law, nor is he the final arbiter of its meaning. We will continue to fight to make sure he doesn't get the last word. A federal court in Detroit has already found the warrantless surveillance program to be unconstitutional and illegal.

RU: According to one report I've seen, "the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court." Is this true and can they get away with this?

CF: The bill removes the ability of most of the detainees to challenge their detention or treatment in federal court. We expect the courts to begin to address the unconstitutional court-stripping provisions of the bill soon after it is signed into law. But no, the bill does not criminalize any challenge — it simply strips detainees of the ability to raise a challenge.

RU: Most citizens may assume that the government only uses the Homeland Security apparatus and the various anti-terrorist laws against terrorism suspects. Can you counter this assumption, and can you name one or two particularly egregious cases?

CF: Since the horrific attacks of September 11, 2001, this administration has used the "war on terror" as a blanket rationale to curtail and undermine our civil liberties and fundamental freedoms. The Patriot Act — sold as an anti-terrorism tool — is used in routine criminal investigations. The FBI and other law enforcement agencies spy on political organizations critical of this administration. This administration has cast a cloud of secrecy over its actions, in part by undermining the Freedom of Information Act. There are many "egregious cases" — a "top ten" list of them can be found here.

RU: Have we lost habeas corpus at other times in U.S. history?

CF: Unfortunately, yes — Lincoln suspended habeas corpus during the Civil War. After the Supreme Court ruled that the president could not do so unilaterally, Congress passed a law to ratify the suspension of habeas. Congress also suspended the "Great Writ" in other instances - in Hawaii during WWII, in the Philippines during insurrection, and in South Carolina to quell a Ku Klux Klan insurrection in the aftermath of the Civil War.

The Constitution only allows suspension of its protections in times of "rebellion or invasion." It is important to recognize that in contrast to our seemingly endless "War on Terror," in each of those previous instances the situation was much more analogous to a true rebellion or invasion.

RU: In 1996, the ACLU said Clinton's anti-terrorism bill "crippled the Bill of Rights." How much worse has it gotten under Bush?

CF: As mentioned above, there are many examples of how this administration — sometimes with the tacit approval of Congress — has sought to "cripple the Bill of Rights." In addition to the actual policies, the rhetoric coming from the White House and its allies is particularly alarming: those who oppose the president and his policies are somehow supporting the terrorists. Nothing could be further from the truth. The ACLU and its allies — including such Republican stalwarts as former Republican Congressman Bob Barr — understand the importance of having both security and liberty. The administration pays only lip service to protecting civil liberties, while its actions seek to undermine our freedoms. We can, and must, be both safe and free.

RU: What can you, or we, do about it?

CF: Keep fighting! And realize that we are beginning to have successes. The Military Commission Act was extremely disappointing, but more and more Members of Congress from both sides of the aisle are willing to vote against these types of bills. And though we lost this fight, we have managed to stop Congress from rubber-stamping the bill to legalize NSA spying — the Senate adjourned without voting on it. The administration and its allies are working hard for a bill that would legalize illegal warrantless eavesdropping, but we are fighting with a broad coalition of allies and we are winning.