Thereâ€™s a great old songâ€”originally composed by Sonny Curtis of The Crickets and then subsequently covered by the Bobby Fuller Four and, later and perhaps more famously, by The Clashâ€”entitled I Fought The Law. The songâ€™s well-known refrain is: â€œI fought the law, and the law won.â€? What brings this tune to mind is the Bush Administrationâ€™s fight to use military commissions to try (and convict) enemy combatants without benefit of due process or the protections afforded by the Geneva Convention. As has been well-publicized, the Supreme Court recently ruled against the Bush cabal, in Hamdan v. Rumsfeld, on this matter. Thus, miraculously it would seem, the President fought the law, and the law won.
Or did it? The never-say-die folks at Bush Industriesâ€”a subsidiary of Halliburtonâ€”have continued their fight, seeking to enlist sympathetic members of Congress to draft legislation that would, in effect, sanction the very commissions that the Supreme Court has ruled illegal. (I believe this tactic is the equivalent of running to Mommy and kissing up to her after Daddy has laid down the law.) Not surprisingly, there are many who remain opposed to the U.S. employing such unlawful military commissions. While the Senate held hearings on the matter yesterday, the American Civil Liberties Union issued a press release urging lawmakers to â€œensure that any legislation regarding criminal trials of detainees being held indefinitely by the federal government includes the basic due process protections valued by all Americansâ€? and to â€œreject any proposal that fails to meet the recognized legal standards embodied in the Uniform Code of Military Justice and the Geneva Conventions.â€? Amazingly, the ACLUâ€™s position appears to be supported by the militaryâ€™s own lawyers, including the judge advocate general of the Army, as reported by R. Jeffrey Smith in todayâ€™s Washington Post:
The militaryâ€™s top uniformed lawyers, appearing at a Senate hearing yesterday, criticized key provisions of a proposed new U.S. plan for special military courts, affirming that they did not see eye to eye with the senior Bush administration political appointees who developed the plan and presented it to them last week.
The lawyersâ€™ rare, open disagreement with civilian officials at the Pentagon, the Justice Department and the White House came during discussions of proposed new rules for the use of evidence derived from hearsay or coercion and the possible exclusion of defendants from the trials in some circumstances….
The basis for the lawyersâ€™ concerns about administration policy, which they first articulated in private memos in 2002 and 2003 for top Defense Department political appointees, is that weak respect for the rights of U.S.-held prisoners eventually could undermine U.S. demands for fair treatment of captured U.S. service personnel.
â€œThe United States should be an example to the world, sir,â€? Maj. Gen. Scott C. Black, judge advocate general of the Army, told Sen. Russell Feingold (D-Wis.) at the Senate Judiciary Committee hearing. â€œReciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules for the commissions, and thatâ€™s the exact reason, sir. The treatment of soldiers who will be captured on future battlefields is of paramount concern.â€? [full text]
Other sorts of concernsâ€”perhaps more relevant to you and Iâ€”about the draft proposal before the Senate were expressed in an opinion piece earlier this week by Marie Cocco, a columnist with the Washington Post Writerâ€™s Group:
A copy of the draft made public by The Washington Post shows that, while an initial version anticipated military trials only for â€œalienâ€? enemy combatants, the word â€œalienâ€? is subsequently crossed out. Instead, the document refers time and again to â€œpersonsâ€? who are detainees — not foreign nationals picked up on the battlefield of Afghanistan or anywhere else. A â€œperson,â€? under this draft, could be an American seized at a shopping mall, or in a suburban backyard.
Here, then, is how the government could treat American citizens if this draft were to become law: A citizen could be designated an â€œenemy combatantâ€? (a term the administration has never clearly defined) and held in a military prison — say, the encampment at Guantanamo Bay, Cuba. There, the citizen would have no right to a speedy trial. Any trials, the draft says, could occur â€œat any time without limitations.â€? The citizenâ€™s wait for a day in court could be a month, a year, five years or longer.
Once the citizen is tried under rules that mock the constitutional protections he would receive in a federal court, or in a U.S. military court-martial, the outcome would mean little. An acquittal would not necessarily free the detainee. Neither would a sentence imposed, say, for two or three years and served in full. â€œAn acquittal or conviction under this act does not preclude the United States, in accordance with the law of war, to detain enemy combatants until the cessation of hostilities as a means to prevent their return to the fight.â€?
Of course, â€œthe fightâ€? as defined in the draft is not necessarily an armed battle. People may be designated â€œenemy combatantsâ€? and subject to these rules if the president and the Pentagon believe they are now or were once â€œpart of, or supportingâ€? the Taliban, al-Qaeda or â€œassociated forces.â€? Support isn’t defined. It could mean financial support. Or political support. It could mean shouting â€œlong live Osama!â€? while walking down Pennsylvania Avenue.
All these powers — to sweep up American citizens and throw them in a military brig, to detain them without trial, to continue holding them even after they might be acquitted by a military commission — are rightly the presidentâ€™s because he is commander in chief of the armed forces, according to the draft.
This is the precise argument the White House has tried, again and again, to get the Supreme Court to accept. It has failed. [full text]
Nonetheless, the Bush Administrationâ€™s fight against the law continues, thus serving as â€œan example to the worldâ€? not of compassion and justice but of arrogance and tyranny. As the Senate deliberates, one can only wonder, with more than a little apprehension, which side will ultimately prevail. When all is said and done, will we be able to proclaim that â€œthe law wonâ€??