Risk & Opportunity

A quarterly political and economic newsletter published by Michael Cuddehe

Q3 '06

The Mid-Term Election and the Military Commissions Act

On October 17th, 2006 President Bush signed into law the Military Commissions Act. This dangerous and profoundly un-American Act marks a new low in our ongoing political devolution. The alleged debate around this bill consisted of posturing among Republicans to line up for more (the Bush Plan) or less (the McCain plan) egregious violations of our Constitution, our international treaty obligations, and our fundamental liberties. Democrats were nowhere to be seen in this “debate,” preferring, as they have through this entire election cycle, to not stand on principle for anything, but to stand in the shadows and watch the Republicans destroy themselves. Republicans are doing a rather good job of self-destruction, but they are also unfortunately destroying our precious heritage along with themselves.

In the end the President got everything he wanted, which is in effect absolute power to identify, detain, try and execute or imprison whomever he in his sole judgment designates as an “enemy combatant,” without accountability to anyone or interference from the courts. He can also allocate these powers to whomever he chooses. Habeas corpus, the primary defense of the individual against unlawful detention, has been suspended. Ostensibly this provision only applies to non-citizens, but the power granted is so broad and the constraints so vague that in practice there is no such restriction. The Act also allows the President to define what is and what is not torture, and it gives retroactive cover to the agents of this Administration who have deliberately and blatantly violated domestic and international law in their pursuit of the War on Terror.

There was only one conscientious Republican who opposed this bill on principal -- Lincoln Chaffee of Vermont. Olympia Snowe abstained. But in the end the Military Commissions Act was passed with the support of 12 Democrat Senators, who should not be forgotten for their part in this abomination. You can review the votes of individual members of both the House and Senate at GovTrack.us. Our hope at this point is that this law will be quickly challenged and declared unconstitutional by the Supreme Court.

As the ’06 mid-term election is upon us, Republicans are still staking their claim to power on the so-called War on Terror. None of the failures of this campaign, strategic or moral, have swayed them from their course, nor have their dismal poll numbers. (See the latest poll numbers at RealClearPolitics.com.) The President continues to demand absolute power to conduct this “war” as he sees fit without oversight or interference from Congress or the courts, and our Republican Congress continues to roll over and surrender all power to the Executive.

Voter frustration is showing up in a dramatic and sustained swing of sentiment to the Democrats. Just the same, primarily due to the influence of gerrymandering, an election that would otherwise be a landslide for Democrats will be very close. See the Balance of Power Scorecard on CQPolitics.com. CQPolitics’ final analysis prior to the election is summed up in the following paragraph:

“This final overview of the political landscape finds the Nov. 7 elections shaping up as a collision between the Republican Party's fundraising and voter turnout proficiency with an ever-expanding field of competitive seats and a consistent decline in the GOPs support among voters on issues across the board. The result is a Congress up for grabs, and an energized Democratic Party trying hard not to seem overconfident.”

As for the validity of the election…that’s another story altogether. Read the Salon review of the disturbing HBO documentary “Hacking Democracy.”

The changing political landscape is also seen in the increasing willingness of the press, which has been extremely docile over the past five years, to stand up and “speak truth to power.”

On October 18th Keith Olbermann, anchor of MSNBC’s Countdown, delivered a stunning, historically framed denunciation of the profoundly un-American Military Commissions Act. In the spirit of Edward R. Morrow on steroids, Olbermann’s commentary will stand as a classic example of the essential role of an independent press in a free society. As a public service, I relay this commentary to you.

For the full impact of this powerful commentary, you can go directly to the video, here or here. The text follows:

We have lived as if in a trance.

We have lived as people in fear.

And now—our rights and our freedoms in peril—we slowly awake to learn that we have been afraid of the wrong thing.

Therefore, tonight have we truly become the inheritors of our American legacy.

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:

A government more dangerous to our liberty, than is the enemy it claims to protect us from.

We have been here before—and we have been here before led here—by men better and wiser and nobler than George W. Bush.

We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives, only to watch him use those acts to jail newspaper editors.

American newspaper editors, in American jails, for things they wrote about America.

We have been here when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives, only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war.

American public speakers, in American jails, for things they said about America.

And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9066 was necessary to save American lives, only to watch him use that order to imprison and pauperize 110,000 Americans while his man in charge, General DeWitt, told Congress: “It makes no difference whether he is an American citizen—he is still a Japanese.”

American citizens, in American camps, for something they neither wrote nor said nor did, but for the choices they or their ancestors had made about coming to America.

Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons.

And each was a betrayal of that for which the president who advocated them claimed to be fighting.

Adams and his party were swept from office, and the Alien and Sedition Acts erased.

Many of the very people Wilson silenced survived him, and one of them even ran to succeed him, and got 900,000 votes, though his presidential campaign was conducted entirely from his jail cell.

And Roosevelt’s internment of the Japanese was not merely the worst blight on his record, but it would necessitate a formal apology from the government of the United States to the citizens of the United States whose lives it ruined.

The most vital, the most urgent, the most inescapable of reasons.

In times of fright, we have been only human.

We have let Roosevelt’s “fear of fear itself” overtake us.

We have listened to the little voice inside that has said, “the wolf is at the door; this will be temporary; this will be precise; this too shall pass.”

We have accepted that the only way to stop the terrorists is to let the government become just a little bit like the terrorists.

Just the way we once accepted that the only way to stop the Soviets was to let the government become just a little bit like the Soviets.

Or substitute the Japanese.

Or the Germans.

Or the Socialists.

Or the Anarchists.

Or the Immigrants.

Or the British.

Or the Aliens.

The most vital, the most urgent, the most inescapable of reasons.

And, always, always wrong.

“With the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?”

Wise words.

And ironic ones, Mr. Bush.

Your own, of course, yesterday, in signing the Military Commissions Act.

You spoke so much more than you know, Sir.

Sadly—of course—the distance of history will recognize that the threat this generation of Americans needed to take seriously was you.

We have a long and painful history of ignoring the prophecy attributed to Benjamin Franklin that “those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

But even within this history we have not before codified the poisoning of habeas corpus, that wellspring of protection from which all essential liberties flow.

You, sir, have now befouled that spring.

You, sir, have now given us chaos and called it order.

You, sir, have now imposed subjugation and called it freedom.

For the most vital, the most urgent, the most inescapable of reasons.

And — again, Mr. Bush — all of them, wrong.

We have handed a blank check drawn against our freedom to a man who has said it is unacceptable to compare anything this country has ever done to anything the terrorists have ever done.

We have handed a blank check drawn against our freedom to a man who has insisted again that “the United States does not torture. It’s against our laws and it’s against our values” and who has said it with a straight face while the pictures from Abu Ghraib Prison and the stories of Waterboarding figuratively fade in and out, around him.

We have handed a blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens “unlawful enemy combatants” and ship them somewhere—anywhere -- but may now, if he so decides, declare you an “unlawful enemy combatant” and ship you somewhere - anywhere.

And if you think this hyperbole or hysteria, ask the newspaper editors when John Adams was president or the pacifists when Woodrow Wilson was president or the Japanese at Manzanar when Franklin Roosevelt was president.

And if you somehow think habeas corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant”—exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this attorney general is going to help you?

This President now has his blank check.

He lied to get it.

He lied as he received it.

Is there any reason to even hope he has not lied about how he intends to use it nor who he intends to use it against?

“These military commissions will provide a fair trial,” you told us yesterday, Mr. Bush, “in which the accused are presumed innocent, have access to an attorney and can hear all the evidence against them.”

"Presumed innocent," Mr. Bush?

The very piece of paper you signed as you said that, allows for the detainees to be abused up to the point just before they sustain “serious mental and physical trauma” in the hope of getting them to incriminate themselves, and may no longer even invoke The Geneva Conventions in their own defense.

"Access to an attorney," Mr. Bush?

Lieutenant Commander Charles Swift said on this program, Sir, and to the Supreme Court, that he was only granted access to his detainee defendant on the promise that the detainee would plead guilty.

"Hearing all the evidence," Mr. Bush?

The Military Commissions Act specifically permits the introduction of classified evidence not made available to the defense.

Your words are lies, Sir.

They are lies that imperil us all.

“One of the terrorists believed to have planned the 9/11 attacks,” you told us yesterday, “said he hoped the attacks would be the beginning of the end of America.”

That terrorist, sir, could only hope.

Not his actions, nor the actions of a ceaseless line of terrorists (real or imagined), could measure up to what you have wrought.

Habeas corpus? Gone.

The Geneva Conventions? Optional.

The moral force we shined outwards to the world as an eternal beacon, and inwards at ourselves as an eternal protection? Snuffed out.

These things you have done, Mr. Bush, they would be “the beginning of the end of America.”

And did it even occur to you once, sir — somewhere in amidst those eight separate, gruesome, intentional, terroristic invocations of the horrors of 9/11 — that with only a little further shift in this world we now know—just a touch more repudiation of all of that for which our patriots died — did it ever occur to you once that in just 27 months and two days from now when you leave office, some irresponsible future president and a “competent tribunal” of lackeys would be entitled, by the actions of your own hand, to declare the status of “unlawful enemy combatant” for — and convene a Military Commission to try — not John Walker Lindh, but George Walker Bush?

For the most vital, the most urgent, the most inescapable of reasons.

And doubtless, Sir, all of them—as always—wrong.

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