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Military Commissions Act of 2006

by Stephen Malm
A forum on the new Military Commissions Act was held in Fresno last week by Peace Fresno and the La Raza Students Association of San Joaquin College of Law. Below, attorney Catherine Campbell makes a point.
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Military Commissions Act of 2006
A Collaborative Forum
By Stephen Malm

The panorama of erosions to our civil liberties since 9/11 and human rights in general is well known and widespread. Domestic surveillance, the privacy encroachments of the Patriot Act, prisoner torture and abuse, all operate under the guise of necessary measures to combat the war on terror. At the forum on the new Military Commissions Act held by Peace Fresno and the La Raza Students Association of San Joaquin College of Law, speaker and Scholar of Rhetoric Jim Bartram may have said it best: “The response to calling September 11 an attack on our freedom: they hate us because of our freedoms, was to take away all of our freedoms -- so there was nothing left that needed attack.”

Howard Hendrix, teacher at Fresno State and widely read science fiction author, approached “the broader philosophical issues of privileging state and corporate power over individual liberties.” Hendrix noted, “the war to confine the open mind is older than the war on terror, but the war on terror has provided a convenient new front on which to wage that older struggle.” Accordingly, “one core policy choice of the Bush administration ‘was to frame its response to the 9/11 attacks in terms of a global ‘war’ rather than as a criminal law-enforcement effort, which meant that the law… regarding torture would have to be made to fit this new paradigm.” Currently, said Hendrix, “The tool most widely being used to get inside the private space of consciousness is fear.” The elimination of habeas corpus is merely an obvious case of privileging state power over individual liberty.” Hendrix added, “No doubt that terrorism is real, but I do not believe the war on terror is being waged in a fashion mutual to our civil liberties.”

According to Catherine Campbell, forum participant and prominent local civil rights and appellate attorney, the Act gives the president “unprecedented power to detain and try people as part of the War on Terror in military commissions. Broadly, the Act does three things:

1. It strips the right of ‘unlawful enemy combatants’ to habeas corpus (the traditional right of detainees to challenge their detention).
2. It gives the US president the power to detain indefinitely anyone – US or foreign nationals… whom it deems to have provided material support to anti-US hostilities … and to use secret and coerced evidence” that may be classified or obtained by torture or other degrading treatment.
3. Moreover, the Act “gives US officials immunity from prosecution for torturing detainees who were captured before the end of 2005…”

The significance of stripping away the right of habeas relief cannot be overstated. “There is no court review of detentions… a detainee will not be allowed to contest either the reasons for detention or the conditions of confinement.” The right of appeal exists only after conviction and the appeal may only question “whether the process by which the conviction was obtained complied with existing law, including the Act itself.” As such, “any alien detained who is determined to be an enemy combatant or who is awaiting determination” … of that “status may be detained indefinitely because he or she is not given access to habeas relief.” “A detainee could be incarcerated for years, or even for life, without ever getting to the stage where appellate remedies are available.” Campbell further noted, “there are those who have argued forcefully that the vagueness of the law, the contradictions of the law, would allow for the suspension of rights of US citizens…”

Duane Ruth-Heffelbower, attorney and former Captain in the US Air Force Judge Advocate General Corps, now director of graduate academic programs at the Center for Peacemaking and Conflict Studies of Fresno University, declared, “So if a tribunal created by the Secretary of Defense declares you to be an unlawful enemy combatant, you have no recourse and can be tried under the Act.” “Imagine that you are shopping in a large department store and are detained by store security for shoplifting. Under the courts martial and MCA plan, you would be assigned a lawyer who works for the store to defend you. If you hired your own lawyer, the store’s lawyer would be co-counsel. The judge would be corporate counsel, and the jury would be five store executives. If that doesn’t work for you, you probably wouldn’t want to be a defendant under the MCA.” Said Heffelbower, “A finding by a military tribunal that a person is an enemy combatant is dispositive.” “Ambiguities may allow citizens to be swept up by this Act.”

This December 10 saw a well attended event moderated by Constitutional Law Professor Jeffrey Purvis who remarked that the forum “was an opportunity to educate ourselves… Our project as citizens is to create ordered liberty.” Echoing Supreme Court Justice Frankfurter who made the point that citizens must rely upon themselves, and not solely the courts, to protect their civil rights, Professor Purvis quoted: "Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives.” Responding to audience questions about what approach was best to rollback restrictions on our freedoms, Professor Purvis asserted, “We can no longer look to our Supreme Court for protections. We’d better find a legislative strategy.” Howard Hendrix added quickly, “our country is not ‘love it or leave it,’ but -- if you love your country, hold it up to its highest ideals… You’re doing the job of terrorists with this erosion of rights, undercutting our own basis of liberty.” Bartram confirmed, “We are teaching students, not the meaning of freedom, but how to wear freedom like a flag.”

The underpinnings of our freedoms was a theme not ignored by the panelists. Freedom does not flow at the discretion of governments, stamped, granted and packaged, subject to their whim, but follows as a condition of basic human needs. Lacking sufficient protection, the value of our common humanity is diminished. “’Why should we grant rights to criminals and terrorists,’ is the attitude of some,” said Professor Purvis. “We have this pattern of the expansion and contraction of criminal rights in this country,” noted Hendrix, “People should wake up.” “Habeas corpus protects even a child against the unlawful actions of the state,” said Attorney Campbell.

The organizers of the event expressed regret that no government representative agreed to attend to set forth the government’s point of view. Keep your eyes open for future forums on this and other issues. “Relief must come through an aroused popular conscience that sears the conscience of the people's representatives” and the “opportunities to educate ourselves” as an “informed, civically militant electorate” are there.
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Stephen D. Malm is a 4th year law student at San Joaquin College of Law and is a member of Peace Fresno and the La Raza Students Association there.
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photos by Mike Rhodes
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