GDR — 12 notes from an evening in hell or, no wonder new york is dying? : notes on the recent passage of the Military Commissions Act of 2006

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GDR — 12 notes from an evening in hell or, no wonder new york is dying?:
notes on the recent passage of the Military Commissions Act of 2006
“Journalisms:” or “Our Correspondent:” or “?”
The title and mission of this collective project
is a work in progress. But the general idea is
that we cannot be in all places at all times.
So those who would like to can write a “report”
or “editorial” or “correspondence” to share
experiences for the benefit of others.
To take part, send submission or for more information
please write to journalisms@16beavergroup.org
or post online:
I apologize as these notes are rough and not quite ready to be read as an analysis. But I hope that they give some (possibly scattered) indication of what these recent decision mean legally.
Fortunately, the majority of the work is not mine, but comes from one of the attorneys from the Center for Constitutional Rights. I took notes and then attempted to look at the original bill proposed by Bush as well as the subsequent bill which just passed.
Bill Goodman from CCR spoke this Monday at Cooper Union about the recent passage of the Military Commissions Act of 2006. Here are some observations from him, I have mixed some follow up thoughts/research.
1. The Supreme Court decision 4 months ago in Hamden vs. Rumsfeld was a significant victory for the people. Technically and logistically, it sent the Bush Administration shuffling by doing the following:
A. It stipulated that the President of the United States had to comply with International Law (i.e., The Geneva Conventions)
b. It stipulated that when the President acts without congressional authority in such matters it is acting unconstitutionally.
c. It stipulated that the Detainee Act (passed in 2005) could not be applied retroactively.
2. Last week’s congressional authorization of torture, referred to as the Military Commissions Act of 2006, basically reverses and erases any of those victories.
3. It uses a broad and sweeping definition of “unlawful enemy combatants.”
a. The term did not exist in any statutes.
b. This category was used and exploited by the Bush Administration to undermine Geneva Conventions without allowing defendants to have any recourse to the Judicial Branch, or so was their hope. With the Supreme Court decision in Hamden, they were delivered a severe blow.
c. Their hope failed and they have sought and received this act from Congress to continue what they have been doing while getting the authorization which the Hamden case insisted the President needed. Furthermore, they have sought to shield themselves through this act from any war crimes by making these laws retroactive.
4. Returning to the broad definition of an unlawful combatant, anyone who has been designated by a CSRT (Combatant Status Review Tribunal) or ” any competent tribunal established under their authority” (“their” referring to the President or secretary of Defense) could be be labeled an enemy combatant! Citizen, non, it does not matter, particularly if the interpretation of “wrongfully aiding the enemy” is as broad and sweeping as many fear. Although the following text does not seem to have been included in the final act, I post it below. It is from an earlier version of the Act submitted by the Bush administration and gives us some insight into how expansive they would like net to be.
“Any person who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States or one its co-belligerents shall be guilty of the offense of wrong fully aiding the enemy and shall be subject to whatever punishment the commission may direct.”
5. It is difficult to read such words and NOT THINK that the authors of this law might be out of their minds. What may be even more alarming than the bill itself, has been the response by the press.
Of course, as has been pointed out in a text we forwarded earlier in the week by Naeem Mohaiemen, the New York Times did print:
“[The new law] allows the president to identify enemies, imprison
them indefinitely and interrogate them – albeit with a ban on the
harshest treatment – beyond the reach of the full court reviews
traditionally afforded criminal defendants and ordinary prisoners. Taken
as a whole, the law will give the president more power over
terrorism suspects than he had before the Supreme Court decision this
summer in Hamdan v. Rumsfeld that undercut more than four years of White
House policy.”
Nevertheless, after the day of the passage, the venerable New York Times had a headline which more or less characterized the vote against the new law by 34 Democrats as an election decision.
“Both parties also positioned themselves for the continuing clash over national security going into the homestretch of the midterm elections. The vote showed that Democrats believe that President Bush’s power to wield national security as a political issue is seriously diminished.”
(from NYTimes article “Senate Approves Broad New Rules to Try Detainees”)
Whatever your take on this kind of journalism, it normalizes and trivializes the stakes involved. Not that I have much hope in the Democrats, but the line between “telling it like it is” and extolling cynicism towards elected officials neutralizes the real story here. This bill, even if it is overturned in a few years by the Supreme Court, will set a grave precedent and result in the devastation of a great number of lives.
6. The entire battle within the republican party over this act, seems to have been a gimmick. So spineless was the resistance, that as the act was being passed, the “rebel republicans” who had dissented claimed a victory as they noted that torture techniques like waterboarding would not be allowed in this new revised bill. Incredibly, the attorneys from the Justice Department went out of their way to clarify that this was not their interpretation of the act and that these types of techniques would continue as they were not examples of “grave breaches” of the Geneva Conventions. Before they had of course been arguing against any breach of international law, now what we are left with are “grave breaches!”
7. Retroactive protection against war crimes.
The law proposed by George Bush’s administration seems to have originally suggested September 11, 2001 as the retroactive date for this law, the congressional Bill seems to have gone even further to protect American war crimes by retroactively applying this bill to 1997. Some commentators have actually pointed to this clause as the most valuable of this new act. Namely, it is a tacit admission of war crimes and a shield from prosecution down the line.
amendments made by this subsection, except as 10
specified in subsection (d)(2)(E) of section 2441 of 11
title 18, United States Code, shall take effect as of 12
November 26, 1997, as if enacted immediately after 13
the amendments made by section 583 of Public Law 14
105–118 (as amended by section 4002(e)(7) of Pub-15
lic Law 107–273). 16”
8. Suspension of (The Writ of) Habeas Corpus (Lat. “you have the body” or “you [should] have the body”) as a way to deny the Supreme Court or any court really from making any further determinations on the treatment and internment of individuals categorized as unlawful enemy combatants.
At least in use since the 12th century, cited in Blackstone by 1305, many claim that it has precedents from long before those dates. It basically stipulates that a person being held in custody by any governing authority has the right to appear before a court to have some determination be made whether he is held lawfully, and if not, he or she should be released. It can be used to force the state to either file charges against the detained or be forced to release — thereby giving some legal protection from being held indefinitely by some sovereign’s discretion. We are not talking about laws that have just been won during the civil rights movement, this is something from the middle ages and before! According to Harris v. Nelson, 394 U.S. 286, 290-91 (1969) the writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Here is how the text reads in the current act:
•HR 6166 EH
No court, justice, or judge shall have jurisdic-tion to hear or consider an application for a writ of habeas 23
corpus filed by or on behalf of an alien detained by the 24
United States who has been determined by the United 25
States to have been properly detained as an enemy com-1
batant or is awaiting such determination. 2
In other words, these individuals are beyond the reach or jurisdiction of the law, they are in a legal “no-man’s land” subject to the ban of the sovereign (here the president or secretary of defense and their “tribunals”).
Hate to sound alarmist, but it must be emphasized that without recourse to Habeas Corpus, individuals can easily become slaves of a police state.
Good intro on Habeas Corpus: http://en.wikipedia.org/wiki/Habeas_corpus
9. Now according to Bill Goodman, the CCR attorney, this suspension of Habeas Corpus is a “scandal.” Agreed, but one cannot be certain what is more scandalous, that the Bush administration pursued this act, that Congress has acquiesced, or that the citizens and non-citizens living in this country may allow such a law (which not only unconstitutional, but also in violation of medieval law) to pass without raising their voices in strong dissent and just plain refusing such a blatant violation of the constitution (as in, “hey, how many amendments do we have left now?”
10. So to sum up, four months ago, we had a great victory, and now, according to Bill from CCR the US is facing its most open-ended suspension of Habeas Corpus in its entire history. There are only four other instances he could recall in the entire history of the US.
a. the confederacy during the civil war
b. during uprisings in ku klux klan states
c. uprisings in the philippines
d. in hawaii right after pearl harbor
In each of these instances, the expanse of the suspension of law in both time and space was absolutely specific and limited. In the current case, according to him, if we lose this battle, we have lost our hopes for democracy.
I realize this sounds like the boy who cried wolf and I do realize that there is a much more difficult way of thinking through these developments. Particularly when one acknowledges that this exceptionality is actually the norm we are living in daily. But we are also talking about the suspension of a law that precedes modern democracy.
11. As is usually the case, a large part of the legislation focuses and targets individuals who are non-citizens. David Cole has argued convincingly in his book Enemy Aliens that these kinds of laws historically (e.g, Enemy Alien Act) are often most effective because they give people the impression that their own rights are not in danger by targeting specific “populations”. Of course, what he has in mind are specific laws targeted against ethnic minorities like Chinese or Japanese, but one can think of these suspensions the selective non-applicability of law in relation to African Americans or Native Americans.
Our current situation is no different since one could make the case that most Americans can stand by as such laws get enacted because they have been lead to believe that they are immune — that even if the wording of this act casts a wide net as to who can be deemed an “unlawful enemy combatant”, the real targets are people from the Middle East, Muslims, or South Asians.
12. If tyranny Thrives on …Silence, Secrecy, Fear.
We will not be silent.
There will be no more secrets.
We are not afraid.
Hope these loose notes serve as some entry to engage further on this issue. There is of course much more to be said and done on this subject.
***no reason (to go out) or preferring not to
(gdr continues) Not too long ago, there was a text by Slavoj Zizek, which posited that somehow folks on the left need to think about working with this notion of passive-aggressivity.
He posited that somehow what we suffer from is not passivity, at least not on the surface. People around us are all quite active, constantly doing things, channeling energies into “political matters,” subjects, questions, thinking, attempting to shift discourses, learn, work, connect, … But in his typical counter-intuitive manner, Zizek argues that in some way, all this work is being done, which is intrinsically passive. Looks like lots of work and even resistance, but beneath the surface, all this work just ensures that nothing will actually change. I think about this as I glance through the various email lists I belong to, which contain a lot of knowledge sharing, a lot of good ideas and questions, and below many of these names, positions in big universities and institutions, and I think about what could happen if all this activity just stopped, and was displaced elsewhere. I wonder how much of this activity can be said to (by in large) serve the machine it is attempting to halt.
Zizek, continues further by proposing this overused concept of passive-aggressive as a kind of new mode of politics. If you have guessed, this is along a long line of philosophers who have engaged with Melville’s Bartleby, who is known for his consistence preference “not to” do a, or b … this or that.
For Zizek, Bartleby signals another possibility for politics, “the politics of ‘resistance’ or ‘protestation,’ which parasitizes upon what it negates, to a politics which opens up a new space outside the hegemonic position and its negation.” Many different lines of consideration here. But the article that was posted is below, along with a few blogs that consider it within the context of Zizek’s latest book
What would it mean to just refuse, prefer not to and take this time that is not our own, that we are not supposed to have, because of various commitments and possibly do nothing, possibly channel it elsewhere, so by all appearance, we are passive, but in every drop of sweat or move, we are creating another set of conditions or “facts on the ground”, another way of relating to and being with others, helping build scaffolding for possible lines of flight, alternative organizations and relations to everyday life, different cooperative economies, things which absolutely reject the life that is given to us as the only practical choice.
These thoughts may not even deserve to be in a footnote, so for the last part of this very strange email.
this short play for the naysayers and maybes:
person A asks politely, “what good is protest?”
person C responds, “no good reason, not even for posterity, not even to say to your students or children or someone down the line, we did not remain silent, no, you are right, there is no good reason, we should be doing more.”
person B exclaims, “stop this guilt-tripping machine that is part and parcel of capitalism, we either do this or we die should be the choice no?”
person K suggests, “hey man, hope exists but not for us”
person B proclaims, “if you think about it, the tradition of the oppressed teaches us that the ‘state of exception’ in which we live is the rule. so we must arrive at a concept of history that corresponds to this fact. then we will have the production of a ‘real’ state of exception before us as a task.”
person A utters timidly, “who, this, way, when, you, had, what to say?”
person C responds “nothing but the possibility of saying”
person E ends up saying, “who but us, without hope, since hope is for us only when we are least expecting, since it is not our own, but for us precisely because it calls from outside”
person F as polite as person A, “no reason but measureless boundless hope then.”
Person U as unpopular as uncertain, “its good to be with others on this day, since every day is judgment day”