Thursday, December 02, 2004

Who Wants to Be an Enemy Combatant? 

It may be easier than you think! From USA Today (courtesy of Rising Hegemon):
A federal judge peppered government lawyers Wednesday with pointed questions about the Bush administration's decision nearly three years ago to hold hundreds of foreigners indefinitely at a military prison in Cuba as part of its war on terrorism.

"When will this end?" U.S. District Judge Joyce Hens Green asked . . . .

"The president decides when belligerency begins and when it ends, for the purposes of protecting the country," [Justice Department lawyer Brian] Boyle said . . . .

The arguments before Green touched on nearly every aspect of the administration's legal war on terrorism. Lawyers argued over Bush's decision that the detainees are not entitled to prisoner-of-war protections under the 1949 Geneva Conventions because they did not wear uniforms or insignia. And they sparred over allegations that the evidence against many detainees was obtained by torture.

Several times, Boyle reminded Green that judges should defer to a president at war. But Green asked whether "a little old lady in Switzerland" could be detained as an enemy combatant if she contributed money to an organization that was "a front for al-Qaeda," even though she thought she was giving money to help orphans.

Green offered other scenarios, including: someone from Ireland who taught English to an al-Qaeda operative; a man who knew his cousin was an al-Qaeda member but did not report it to police; and a reporter who knew Osama bin Laden's whereabouts but refused to tell authorities for fear of revealing a source's identity.

Boyle said it is possible that the people in Green's fictitious examples could be taken into custody. Green then pushed Boyle to define the battlefield in the war on terror.

"If an enemy combatant can include someone in Africa or Europe who never came within 1,000 miles of the battlefield (in Afghanistan (news - web sites)), what and where is the battlefield?" she asked, referring to three detainees captured in Africa.

There are no boundaries, Boyle said, because al-Qaeda is a global terrorist group "like nothing we have seen before."
Or is it?

The above debate, as you are surely aware, has very little to do with protecting Americans from terror and everything to do with expanding the powers of the executive. If you imagine that only foreigners are in danger of having their rights stripped away by Presidential fiat -- that the Constitution would necessarily protect American citizens from such depredations -- you may find it enlightening to revisit a story from last year, when the Center for Public Integrity obtained a draft copy of the Domestic Security Enhancement Act of 2003, a/k/a "Patriot Act II" -- a Justice Dept. wishlist drawn up by John Ashcroft and his staff, and distributed in secret to Dennis Hastert and Dick Cheney, despite denials by all and sundry that any such document existed. Matt Welch enumerated a few of the DSEA's more alarming provisions:
  • Americans could have their citizenship revoked, if found to have contributed "material support" to organizations deemed by the government, even retroactively, to be "terrorist." As [columnist Nat] Hentoff wrote in the Feb. 28 Village Voice: "Until now, in our law, an American could only lose his or her citizenship by declaring a clear intent to abandon it. But -- and read this carefully from the new bill -- 'the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct.'" (Italics Hentoff's.)

  • Legal permanent residents (like, say, my French wife), could be deported instantaneously, without a criminal charge or even evidence, if the Attorney General considers them a threat to national security. If they commit minor, non-terrorist offenses, they can still be booted out, without so much as a day in court, because the law would exempt habeas corpus review in some cases. As the American Civil Liberties Union stated in its long brief against the DSEA, "Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War."

  • Authorities could wiretap anybody for 15 days, and snoop on anyone's Internet usage (including chat and email), all without obtaining a warrant.

  • The government would be specifically instructed not to release any information about detainees held on suspicion of terrorist activities, until they are actually charged with a crime. Or, as [columnist Nat] Hentoff put it, "for the first time in U.S. history, secret arrests will be specifically permitted."

  • Businesses that rat on their customers to the Feds -- even if the information violates privacy agreements, or is, in fact, dead wrong -- would be granted immunity. "Such immunity," the ACLU contended, "could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's Operation TIPS."

  • Police officers carrying out illegal searches would also be granted legal immunity if they were just carrying out orders.

  • Federal "consent decrees" limiting local law enforcement agencies' abilities to spy on citizens in their jurisdiction would be rolled back. As Howard Simon, executive director of Florida's ACLU, noted in a March 19 column in the Sarasota Herald Tribune: "The restrictions on political surveillance were hard-fought victories for civil liberties during the 1970s."

  • American citizens could be subject to secret surveillance by their own government on behalf of foreign countries, including dictatorships.

  • The death penalty would be expanded to cover 15 new offenses.
And a few more tasty bits, from a massive list put together by Alex Jones at Infowars (link courtesy of Zemblan patriot J.D.):
  • SECTION 103 allows the Federal government to use wartime martial law powers domestically and internationally without Congress declaring that a state of war exists.

  • SECTION 128 allows the Federal government to place gag orders on Federal and State Grand Juries and to take over the proceedings. It also disallows individuals or organizations to even try to quash a Federal subpoena. So now defending yourself will be a terrorist action.

  • SECTION 129 destroys any remaining whistleblower protection for Federal agents.

  • SECTION 202 allows corporations to keep secret their activities with toxic biological, chemical or radiological materials.

  • SECTION 205 allows top Federal officials to keep all their financial dealings secret, and anyone investigating them can be considered a terrorist.

  • SECTION 322 removes Congress from the extradition process and allows officers of the Homeland Security complex to extradite American citizens anywhere they wish. It also allows Homeland Security to secretly take individuals out of foreign countries.

  • SECTION 403 expands the definition of weapons of mass destruction to include any activity that affects interstate or foreign commerce.

  • SECTION 427 sets up asset forfeiture provisions for anyone engaging in terrorist activities.
The leaking of the draft (by a Justice Dept. staffer) and the subsequent flood of bad publicity essentially scuttled any chance of passing Patriot II as written. It may not surprise you to learn, however, that the Bush administration did not abandon its brainchild: they simply took it apart and smuggled it, piecemeal, into other proposed legislation -- as you can see here and here.

Although he believes A.G.-in-waiting Alberto Gonzalez, who helped write Patriot Act I, to be considerably worse than Ashcroft, Nat Hentoff nonetheless sees reason for hope in a recent district court ruling that struck down a portion of Patriot Act I as unconstitutional:
There are two primary roadblocks to further assaults on our liberties. Despite continued Republican control of Congress, there is still a firm alliance there between civil-liberties Democrats and conservative Republican libertarians, especially in the Senate. That coalition will continue to oppose Bush's determination to fight the Patriot Act's "sunset clause," which permits reconsideration of parts of the act by December 2005.

During the presidential campaign, Bush repeatedly urged Congress to ignore the "sunset clause" and enshrine the Patriot Act permanently. The Bill of Rights Defense Committee resolutions in nearly 400 cities and towns, and four state legislatures, will keep the pressure on Congress to resist this expansion of executive powers.

Our second hope is the awakening lower federal courts, which are now challenging sections of the Patriot Act. But even if these judicial curbs on Bush and Ashcroft grow, any such victories can be overturned by the Supreme Court, to which Bush is going to make at least one appointment, and possibly more, by the end of his second term.
UPDATE: How'd we miss this?
The American Civil Liberties Union on Thursday accused the FBI and local police of spying on political and faith-based groups and formally asked the government for information about such FBI surveillance.

In Freedom of Information Act requests filed in 10 states and Washington, D.C., the ACLU sought information about the FBI's use of Joint Terrorism Task Forces and local police for what it called political surveillance . . . .

"The FBI is wasting its time and our tax dollars spying on groups that criticize the government, like the Quakers in Colorado or Catholic Peace Ministries in Iowa," said ACLU associate legal director Ann Beeson . . . .

The FBI denied using the task forces -- a key element of the government's efforts to prevent another terror attack like those on Sept. 11, 2001 -- to spy on innocent individuals.

Asked about the ACLU action, an FBI spokesman said, "The FBI does not investigate individuals or groups that are engaged in exercising their constitutional rights of freedom of expression.

He added, "Only if they are engaged in criminal activity in support of a cause would we be interested in them."
How long until all public dissent is redefined as terrorism? Oh, wait -- they already tried it in Oregon.

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