04 Oct 2006

The Military Commissions Act of 2006

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Andrew McCarthy refutes some of the allegations made by critics from the left:

1) That the bill deprives prisoners of habeas corpus.

First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

2) Habeas corpus is required to permit prisoners to defend Geneva Convention rights.

it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty’s text. By contrast, Geneva’s express statements indicate that no judicial intervention was contemplated.

This, no doubt, is why the Geneva Conventions, qua treaties, have never been judicially enforced. Consequently, if Congress had actually denied al Qaeda detainees a right to use Common Article 3 to challenge their detention in federal court (and, as we’ll soon see, Congress has not done that), that would merely have reaffirmed what has been the law for over a half century.

If the political representatives of a nation believe one of its citizens is being unlawfully held at Gitmo, the proper procedure is for that nation to protest to our State Department, not for the detainee to sue our country in our courts. In fact, several nations have made such claims, and Bush administration has often responded by repatriating detainees to their home countries … only to have many of them rejoin the jihad. In any event, though, there would be nothing wrong with declining to allow habeas to be used for the creation of individual rights that detainees do not in fact have under international law.

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What prevents the president from declaring YOU an enemy combatant , throwing you in prison, and denying you the right to know why? Answer: His sanity and honesty. That’s it. You’ve no idea the implications of this act and if you think that somehow its application will be limited only to legitimate members of terrorist organizations, you are naive to the hilt.


It is true that ordinary non-celebritous Americans are in uncommon cases the victims of mistakes and delusions on the part of the authorities. Abuse of power, too, took place from time to time before 9/11.

But, at the present time, the FBI, Homeland Security, and other agencies are quite busy chasing really dangerous people, and absent some peculiar incriminating evidence, like my frequenting a mosque in common with known terrorists, I (and nearly all the rest of 300,000,000 million Americans) am just not of any interest to the authorities.

When they throw Seymour Hersh and various other reliable journalistic sources of aid and comfort to the enemy in the brig, then you know that a potential Constitutional issue is being raised.

At the present time, we are merely faced with leftwing narcissism and paranoia.



The fact that you confine the constitutionality of this law to its present uses is exactly why you fail to grasp the gravity of the situation. You cannot conceive that, say in the not so distant future, another occupant of the Oval Office may decide to declare all of his political opponents enemy combatants and have them neatly tucked away in jail. That is the implication of this statute. Preposterous, you say to wit the Seymour Hersh example, but the point is the power has been given. It’s the existence of that power that flies in the face of this country’s entire foundation. But hey, they haven’t ACTUALLY abused it yet; so quit being so narcissistic(?) and paranoid, right?


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