To turn our eyes momentarily from the terrifying war in the Middle East is to discover an ever-more ominous turn in the Bush administration's war on terror.
Having been barred by the Supreme Court from treating foreign terrorism suspects as if they had few or no legal rights, the president's initial response is not to comply with the high court's finding that detainees must be treated under accepted standards of international law. In fact, the White House pushes to extend the ill treatment to American citizens.
That is, effectively, what the administration's draft of new rules for the military detention and trial of terrorism suspects would do. News and human rights organizations that have obtained the document, marked "deliberative draft close hold," have criticized the way in which it would obliterate the Supreme Court's ruling. It seeks to have Congress write into law essentially the same procedures for military trials that the high court just said were illegal. That is, terrorism suspects still could be excluded from the courtroom, evidence could be withheld from the defense, and the Geneva Conventions which the Supreme Court explicitly said must apply, would be circumvented.
More chilling is that the draft makes clear that the president wishes to impose these conditions upon any American citizen he calls an "enemy combatant."
A copy of the draft made public by The Washington Post shows that, while an initial version anticipated military trials only for "alien" enemy combatants, the word "alien" is subsequently crossed out. Instead, the document refers time and again to "persons" who are detainees. A "person," 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 "enemy combatant" (a term the administration has never clearly defined) and held in a military prison. There, the citizen would have no right to a speedy trial. Any trials, the draft says, could occur "at any time without limitations."
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. "An 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."
Of course, "the fight" as defined in the draft is not necessarily an armed battle. People may be designated "enemy combatants" and subject to these rules if the president and the Pentagon believe they are now or were once "part of, or supporting" the Taliban, al-Qaeda or "associated forces." Support isn't defined. It could mean shouting "long live Osama!" while walking down Pennsylvania Avenue.
All these powers are rightly the president'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.
In two cases in which President Bush indeed did detain American citizens indefinitely and without charge, the courts derailed the effort. After the Supreme Court ruled against the administration two years ago in the case of Yaser Hamdi, the military released him and returned him to his family in Saudi Arabia. In a second case involving Jose Padilla, a citizen who was picked up at Chicago's O'Hare Airport, the government finally issued an indictment four years into his detainment just as the Supreme Court was considering Padilla's case.
The Bush administration now seeks from Congress an authorization for the blank check it once sought to give itself. If lawmakers hand him this, they will be handing over rights that Americans may never regain.
© 2006 The Daily Camera