Aref Assaf 10/03/2006

The “Military Commissions Act of 2006” will soon be viewed as another  tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.  Similar to the 2001 USA Patriot Act, the new Act was rushed Congress and with the question of patriotism and loyalty on the heads of members of Congress.  One of the most egregious provisions of the Act was the demise of habeas corpus as a guaranteed right for prisoners or accused persons.  Habeas corpus, or the Great Writ, is the legal procedure that keeps the government from holding you indefinitely without showing cause. When you challenge your detention by filing a habeas corpus petition, the executive branch must explain to a neutral judge its justification for holding you. It’s been a pillar of Western law since the signing of the Magna Carta in 1215.

Habeas corpus has been a right in America from the time the first settlers came to our shores. The Founders of our nation thought habeas corpus was so essential to preserving liberty, justice and democracy that they enshrined it in the very first article of the United States Constitution.

Habeas corpus – which the English barons imposed upon King John in 1215 through Magna Carta -- the present sycophantic US Congress today handed back with a cowardice smile.  
Unquestionably we need laws that strength our fight against terrorists. But the less published details of the final version of the legislation (also know as the detainee bill) contain inherently unconstitutional excesses and fundamentally challenge our Bill of Rights.

We truly appreciate the efforts of the members of Congress who voted against this legislation and in favor of human rights, the rule of law, and our standing in the international community. We raise our hats to Congressman Bill Pascrell for his consistent stand on these fundamental issues. He took a principled stand.

Fear politics showed its ugly face here. The Bush administration manipulated Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists.

Of special import to our community and considering all the laws barring contacts with terrorist organizations, is the expanded definition of ‘unlawful enemy combatant” to allow the U.S. government to detain people – on or off the battlefield – indefinitely without charge or access to judicial review for an act as minor as writing a check. During this holy of month of Ramadan where Muslims  give to the poor and the needy, one wonders if such a religious and innocent act would endanger his or her legal status in this country. Even unknowingly, a Muslim giving to a charity may expatriate himself if it is discovered now or into the future that the government has black listed such an entity. (See my note on this point) 

It is for this reason we should not allow political expediency to rationalize the Yes vote of Senator Menendez. In my eyes, his political and moral stature will be forever tainted.

Our Congress, including our own Democratic Senator Bill Menendez and most Republican representatives, have just passed legislation that:

• Creates a new judicial system to try a wide variety of people in military commissions without the minimal safeguards regarding coerced evidence may deny the right of the accused to examine evidence against them.   A person could be sentenced to death under this flawed system.
• Strips prisoners in Guantanamo – and other alleged “enemy combatants” in U.S. custody -- of the ability to file a writ of habeas corpus and challenge their detention.   Many of these prisoners have been held for almost five years without charges or meaningful judicial review
• The measure would broaden the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense
• Expands the definition of ‘unlawful enemy combatant” to allow the U.S. government to detain people – on or off the battlefield – indefinitely without charge or access to judicial review for an act as minor as writing a check.
• Provides retroactive immunity to those who may have been implicated in creating policies or participating in abuse and other acts that most of us would consider torture and other cruel, inhuman or degrading treatment. 
• In effect the new law gives 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." This also includes those who merely give "terrorism" some kind of "support," defined so vaguely that many experts say it could encompass legal advice, innocent gifts to charities or even political opposition to US government policy within its draconian strictures.