While traveling back from Cancun, I heard an interview on the plane "radio" with a lawyer in New York who stated that George Bush has taken the U.S. back to pre-Magna Carta days. Deeply disturbed by this I have investigated if this is in fact the case. Apparently not. But I'm not a lawyer.
After reading the opinion of one of my senators, John Warner
whose statement is obviously biased and who is a huge proponent of the Military Commissions Act of 2006 (MCA), I googled the MCA and found a somewhat more even tempered opinion at
Wikipedia. One of the references quoted there led me to
Joanne Mariner, who is a lawyer (and a smart one presumably since she trained at Yale Law School and is a regular contributor to FindLaw's
Writ) with a sobering, if mildly biased, opinion. Nonetheless, she points out the major flaws of the MCA and sees ways it can be misinterpreted.
After reading these sources, my opinion is the MCA does not give the president the right to try U.S. civilians in a military court, but it does allow him to grab any foreign national he considers a threat as he defines it. Excuse my limited imagination. King George does not wish to rule the U.S. He is preparing to rule the world. Almost everyone (except the defendant) who participates in the arrest, incarceration and trial must have a security clearance. This eliminates a lot of civilian lawyers and also makes it generally impossible for the defendant to learn what evidence there is against him (since it is classified).
"The recently declassified National Intelligence Estimate confirms that U.S. policies have spawned deep-seated Muslim resentment, and that terrorists are using this resentment to draw recruits." Joanne Mariner
The saying goes that you can catch more bees with honey than vinegar. Wouldn't it benefit us to be as friendly as possible with Arab and other Middle Eastern nations so that together we can find the unlawful extremists who turn to terrorism? The U.S. policy toward the Arab countries is (and has been) based on prejudice and a serious lack of understanding of cultural and local political information.
"As a result, detainees who have been tortured or otherwise mistreated are forever barred from going to a U.S. court to seek redress and to air what has happened to them." Joanne Mariner Loc cit
Seems to me, that passing a U.S. law that allows the President to capture foreign nationals and then hold them forever on foreign soil without access to any kind of fair trial or communication resources would be a great breach of international law. Is no one complaining? What about the UN? What about the European Union? Googling "Military Commissions Act" and "international law" I selected the transcript of a speech by John B. Bellinger, Legal Adviser to the U.S. Secretary of State as published by the
Harvard International Law Journal online. Mr. Bellinger answers questions about the MCA on a regular basis and put together a pretty comprehensive summary of the main objections, which he lists:
"First, what is our detention authority to hold these people to begin with? Second, were we required to release them all after the war in Afghanistan seemed to end in 2002? Third, can we and do we have the legal authority to hold these detainees indefinitely without trial? Fourth, why not simply try them in our criminal courts? Fifth, are these military commissions unfair? And lastly, do we finally have it right, now?" John Bellinger
His answers seem fairly reasoned and stated without much bias. During war prisoners can be captured and held without recourse. He concludes that although the war on Afghanistan ended in 2002, the war on the Taliban and Al Qaeda is still going and therefore the U.S. is still at war.
"Now, the problem is that the current situation is obviously different from any kind of normal armed conflict because we do not know how long this war will continue." John B. Bellinger Loc cit
The solution is to keep a war going at all times and then the president can arrest any foreign national he chooses and detain them for an unlimited, unspecified time (and take advantage of his other special war privileges). This definition of "war" seems more like an analogy than an actual war. For example, we have the "war on drugs." Is this a war? No. Likewise I don't see the "war on the Taliban and Al Qaeda" as a war. It is a police action. It is a rounding up of loose ends following a sloppy dispatch of a gang of criminals harbored in the wilds of Afghanistan. Rules of war do not apply.
Likewise, I don't consider the "peacekeeping" occupation of Iraq as war. It is interference in the internal affairs of an independent nation. The U.S. should not be there and should get the troops out. If things don't go the way we think they should, then too bad. It's not our job to run other countries – especially if they don't have weapons of mass destruction aimed at King George's head.
