Help me, I've been confiscated

Restoring Our Constitution: How Bush Can Drag You Before Military Tribunals
by Patriot Daily News Clearinghouse
Fri Mar 02, 2007 at 08:56:32 AM PST
Habeas corpus is now dead. It had a long life, but a federal judge green-lighted Bush's killing of the habeas corpus rights of Guantánamo prisoners to prevent any challenge to Decider's imprisonment by executive "decree." My neighbor says no big deal because habeas corpus is still available for everyone except those evildoer terrorists. Really? Is the public willing to buy a new rule that Bush may ban human rights and civil rights as long as the Decider decrees that someone is an evildoer? If so, get ready for Bush to stick his proverbial camel nose in your tent of civil rights because there are several loopholes permitting Bush to apply this same law against US citizens. In fact, if President Kennedy were still alive, Mr. Decider could nab him. Now, Bush is not likely to go after present or former Presidents. But, if the law is so perverse as to enable Bush to tag former presidents, why would he not use it against us common folks? After all, the Bush cabal says Mr. Decider can tag political activists as "unlawful enemy combatants," which is another door into the land of suspended habeas corpus.

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Bush's new Military Commissions Act (MCA) (pdf file), states that the purpose of the law is to establish rules for military trials of alien unlawful combatants or persons who are not US citizens. This is consistent with public reports that the MCA governs suspected foreign terrorists. However, a few loopholes show Americans may also be sucked into this dehumanized MCA wasteland.

Loophole #1: The Unlawful Enemy Combatant.

Persons who are designated as unlawful enemy combatants are subject to the MCA. But, who has the power to render this finding? The MCA states that a finding by a tribunal that a person is an unlawful enemy combatant is "dispositive" on the issue of military tribunal jurisdiction. [Section 948d(c)] It appears that Bush's lawyers disagree with this part of the MCA, which indicates that some tribunals have power to make such findings. Earlier this month, Justice Dept. lawyers argued in court that it is Bush who has the sole "discretion" to tag anyone as an "enemy combatant," even a US citizen, and courts can not interfere with Bush's wartime powers.

The court was not comfortable with the claim. One judge asked: "What would prevent you from plucking up anyone and saying, 'You are an enemy combatant?'" Bush's lawyer responded: "A citizen, no less than an alien, can be an enemy combatant." Indeed, Bush's lawyer refused to reject the idea that Bush could view himself as being in a state of war against his political opponents and then tag them as enemy combatants in the US:

Judge Motz asked a series of hypothetical questions about whether the president could designate someone affiliated with People for the Ethical Treatment of Animals, or PETA, as an enemy combatant. "Could the president declare war on PETA?" she asked.
[Bush's lawyer] said the hypothetical was unrealistic, but he stopped short of categorically rejecting the idea. "The representative of PETA can sleep well at night," he said, because the executive branch’s determination of who is an enemy combatant is a careful one.

Indeed, a former White House lawyer says US citizens have nothing to fear, claiming that US citizens would not be detained as enemy combatants unless they "take up arms on the side of al-Qaida." However, that is not how the MCA defines unlawful enemy combatants:

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. But [the former White House lawyer] says that's not how the administration will apply it.

Does anyone trust that Mr. Decider will use his unfettered discretion in a fair and reasonable manner? Even lawmakers are concerned about this slippery slope that may subject US citizens to the MCA:

In the House debate, Representative David Wu of Oregon offered this scenario:
Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.

It should be noted that one court recently held that Bush's unfettered discretion to make such status designations was unconstitutional. However, until Congress or the courts take action, Americans risk being tagged an unlawful enemy combatant, kidnapped off our streets and whisked into military imprisonment without any right to challenge their imprisonment.

Loophole #2: The Hostilities Engager Or Material Supporter.

Bush's Kafkaesque interpretation of who is a terrorist or terrorist sympathizer permits the Decider to drag anyone into the MCA, including JFK. The MCA is a poorly-worded law which uses vague, broad, or dual meaning words that are generally undefined. This leads to the dangerous reality that it will be Bush's worldview and perspective that interprets the MCA when the executive branch implements the law. This danger is compounded by the underlying body of material support law which is applied retroactively and with no exemptions for innocent civilians who are involuntary participants.

The MCA (section 948a) defines an unlawful enemy combatant to include the hostilities engager and material supporter:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces;....

A hostilities engager is defined as someone who has participated in hostilities or materially supported hostilities against the US. "Hostilities" is a word with dual meanings of "opposition or resistance to an idea, plan, project, etc." -- which may include political criticism or dissent -- and "acts of warfare."

The MCA itself does not answer the question of which type of hostilities is covered by the law. There are words (e.g., military, war, combat) scattered throughout the MCA which lean toward a definition of "acts of warfare." But, then Section 948b(a) says the MCA governs military tribunals for "violations of the law of war and other offenses triable by military commission." One problem is that offenses triable by military commission include offenses committed by people other than terrorists.

If Bush intended to limit hostilities engagers to "acts of warfare," then why did his lawyers refuse to reject the idea that Bush has power to tag political activists as unlawful enemy combatants? And, how exactly does Bush interpret "war?" It is not a far-fetched question when a judge feels it necessary to ask whether Bush would declare war against political activists. This vagueness means that Bush could use both meanings of hostilities depending upon whom he wanted to tag. This means it is possible for "US citizens to be designated unlawful enemy combatant because it could be read to include anyone who has donated money to a charity for orphans in Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C."

A material supporter, or one who "materially supported hostilities against the United States," is also an unlawful enemy combatant subject to the MCA. The MCA also criminalizes (section 950v) providing "material support for terrorism," which is defined to include conduct "calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct." The MCA relies upon this broad definition of material support from another law:

(1) the term "material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;
(2) the term "training" means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and
(3) the term "expert advice or assistance" means advice or assistance derived from scientific, technical or other specialized knowledge.

We can take a peek at who Bush may tag as material supporters under the MCA based upon how Bush has applied the material support law in the context of the "war on terror." Several anti-terror laws use this same definition of material support, which has been used to limit who may enter the US with refugee status. The material support law has been applied in a harsh manner, which excludes "waivers based on duress, age of consent, statute of limitations, or de minimus support."

There is a substantial record of civilians who have been victimized by terrorists and determined by the UN to qualify for refugee status, but then rejected by the US because the victims provided "material support" to terrorists in the form of coerced ransom, food or shelter:

Columbia: Thousands of civilians deemed to provide material support to leftist guerrillas by paying a ransom to save the lives of kidnapped relatives and by paying a war tax in regions controlled by guerrillas to avoid torture or death.

Liberia: Rebels invaded a home, killed the father, and beat and gang-raped the daughter, held her hostage and forced her to wash their clothes. US concluded daughter provided "material support" by providing shelter and washing clothes.

Sierra Leone: Rebels attacked a woman's home, killing a young family member with machetes, burning another minor child, and raping the woman and her daughter. The rebels held the family captive at their home for days. US placed this case for refugee status on hold because the family provided housing to the rebels.

Burma: Ethnic minority refugees have been denied protection because they contributed to ethnic and religious nonterrorist groups that may be associated with sub-groups that advocate the overthrow of the repressive military Burmese rulers, and such advocacy is deemed "terrorist activity."

So, how could Bush tag JFK? Bush has expanded the reach of the law even further by applying retroactively to ensnare people "who almost half a century ago [were] a member of a guerrilla movement that received assistance from the U.S. government." Under these standards, President Kennedy provided "material support" to a "group that engaged in what is today branded officially as 'terrorist activity.'" In 1961, the Bay of Pigs attack was by a group of US trained and equipped opponents of Castro, known as alzados en armas. Today, the applications for refugee status of 160 Cubans have been red flagged because they were either alzados or provided "material support" to alzados.

One final example shows that Bush intends to protect his unreasonable interpretation of material support law, which was used to prevent or deter humanitarian assistance when the tsunami hit Sri Lanka. One-fifth of this territory is controlled by LTTE, an armed group that has been fighting the government and designated a terrorist organization by the US. LTTE functions as a government, providing courts, a police force, orphanages and health clinics. The material support law criminalizes providing expert advice or assistance, such as telling the LTTE government how to set up camps to minimize the spread of disease. Bush responded to this dilemma by refusing to provide exemptions that acknowledged the reality of life in these areas and maintaining that doctors were not entitled to an injunction against prosecution under the material support laws.

Loophole #3: Immigrant Residents.


Last November, Bush proclaimed that resident immigrants arrested in the US on grounds of terrorism suspicion do not have a right to challenge their imprisonment in civilian courts. This is the first case of the MCA being applied to immigrants living legally in the US. Previously, aliens had the "right to contest their imprisonment" when arrested for immigration violations or other crimes.

The Justice Dept. argued that the MCA applies to all enemy combatants "regardless of the location of the detention," and thus applies to prisons in the US and Guantánamo Bay. This legal immigrant was arrested in 2001 and has been in a military prison in South Carolina since 2003. The Justice Dept. argued that under the MCA passed the prior month, this man was now an "unlawful enemy combatant" who no longer had the right to habeas corpus.

But what about his habeas corpus rights prior to enactment of the MCA? Easy answer, the MCA is retroactive to the beginning of time. Section 948d provides that military tribunals have "jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001."

Loophole #4: The "Any Person" Category.

While the MCA is supposed to govern terrorists, there are several provisions which introduce another category: "Any person," which seems broad enough to include US citizens.

The MCA provides that military tribunals have jurisdiction over "any person subject to this chapter," which so far includes alien unlawful combatants, unlawful enemy combatants, hostilities engagers, material supporters and resident immigrants. The MCA sections on crimes and punishments provide that when certain crimes are committed by "any person subject to this chapter," then the military tribunals have jurisdiction. While the MCA does not say that it applies to US citizens, Bush's lawyers have stated that US citizens can be tagged by him as unlawful enemy combatants, who are expressly subject to the MCA. This interpretation appears consistent with one MCA provision. Section 950v(B)(25) provides that "any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct." This provision applies to persons subject to the MCA, which is ostensibly limited to foreign terrorists, yet it describes a person who has a preexisting allegiance or duty to the US. On what grounds would a foreign terrorist have an allegiance or duty to the US? "Allegiance is the duty which a subject or a citizen owes to the state or to the sovereign of the state to which he belongs."

There is also a catchall category of "any person" to cover those persons who are not already subject to the MCA. Section 950q extends the MCA to punishing "any person" as a principal if that person "commits an offense punishable" by the MCA or "aids, abets, counsels, commands, or procures its commission." Aiding an offense, if interpreted along the lines of the "material support" law, can mean that if one is forced to give a terrorist money at gun point, then that person would be subject to the MCA.

The MCA is just another part of Bush's Frankensteinian creation of a parallel "justice" system that operates without benefit of existing constitutional rights until the courts or Congress take action. Just remember, Bush's MO is to start his new systems with people society generally does not care about, like terrorists and criminals, and then work his way up the ladder to political activists...and then you!

Please, take action now, while you still have that right. Elise has made it easy. Restoring Our Constitution: Take Action Now.

JUST IN CASE YOU MISSED PART OF THIS EXCELLENT SERIES OF THE "RESTORING OUR CONSTITUTION" PROJECT INITIATED BY JAY & ELISE!

Jay Elias - Restoring Our Constitution: An Introduction


Jay Elias - Restoring our Constitution: Lex Gabinia and the Fall of the Republic


OrangeClouds115 - Restoring Our Constitution: Land of the Free... except for that little "habeas corpus" detail


buhdydharma - Restoring Our Constitution: Tyranny vs. Democracy


Major Danby - Restoring Our Constitution: Habeas - Corpse? (pt. 1)


Categorically Imperative - Restoring Our Constitution: The MCA is an Unconstitutional Bill of Attainder

AND, PLEASE DON'T MISS: This diary is Part 1 of a 3-part mini series on how Bush's ban on habeas corpus affects you and is limited to how US citizens can be subjected to the MCA. srkp23's diary (Part 2) addresses how habeas corpus is not just a right exercised by terrorists and criminals, but is used in different civil contexts. And, Got a Grip's diary (Part 3) shows how Bush's logic for concluding that habeas corpus is not a constitutional right can be used to eliminate many rights that we use daily.

Note: All pictures are screen caps or public domain.

Tags: George W. Bush, Restoring Our Constitution, Military Tribunal Act,