Cracks in The Foundation

The job of carrying forward thoughtful analysis of the legislative and policy changes wrought by the G.W. Bush Administration and his accomplice, the GOP controlled Congress is not a glamorous one. Liken it to the job of a housing inspector roving about in dank basements in hostile weather to examine the foundations of a building. Based upon his findings, which may seem far from obvious to the average eye, he must persuade the present or prospective owners that the serious cracks in the foundation are likely to cause the building to crumble. Moreover, he may have to sound the alarm that repairs are immediately necessary to preserve the structure.

Such admonitions are brushed aside by Bush Administration supporters and GOP stalwarts as “political” sniping. While some criticisms obviously do have political motivations, others are simply the objective assessments of the "effects" resulting from "causes" put in motion by Congress and the President. In some cases, the public has been so distracted by the “spin” and “sound bite” media approach to policy used in politics today, that they fail to recognize the real world consequences that policies adopted have. The public is distracted by cynically advanced graphic images of potential “mushroom clouds” rising from nuclear weapons that Iran does not yet have, and Iraq was never close to obtaining. This demagoguery and fear mongering distracts attention from real world erosion of civil rights that are at the core of our democracy.

The Military Commissions Act pushed through last fall by the GOP Congress contained a provision that allowed detainees like those in Guantanamo Bay to have their cases considered by military commissions. That same Act stripped the US courts of their ability to hear cases by the detainees regarding the legality of their detention. A divided panel of the Federal Court in DC just issued a ruling, based upon a 2-1 majority opinion by two GOP appointed judges, that the MCA provision is valid and applies. Unless the ruling is overturned by the Supreme Court [now containing Bush appointees Alito and Chief Justice Roberts], the Bush Administration can do whatever it likes to non-citizens as long as they are off shore. And the top lawyer for the administration has written an opinion that the Geneva Conventions do not even apply.

Keep in mind that the law now provides that the only recourse a detainee who has been labeled an “enemy combatant” [correctly or not] now has is to a military panel answerable only to the Executive Branch authority that made the decision to imprison the detainee in the first place. The primary motivations of such a panel would be to affirm the decision on detention, and to avoid embarrassment to the chain of command and the Administration. The rights of the detainee would fall far below these top priorities. There is no recourse to an independent judiciary whose duty is to uphold the US Constitution, our laws and our system of justice.

This serious crack in the foundation of our system of justice has not gone without notice:

A spokeswoman for Democratic Sen. Patrick Leahy, chairman of the Judiciary Committee, said he was accelerating efforts to pass a revision to the law that would restore detainees' legal rights, noting that some 12 million lawful permanent residents currently in the U.S. could also be stripped of rights. The new provision, introduced by Leahy and then-Judiciary Chairman Arlen Specter, R-Pa., narrowly failed last year on a 48-51 vote.
"The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness," Leahy, D-Vt., said in a statement. [Associated Press – Feb 20, 2007]

The damage that has been done to our democracy and to our system of justice, the very foundation upon which this country was built, lies not only in the blatant public gestures like pre-emptive war and assaults on the environment. There is very serious damage done by insidious measures that undercut and erode the principles we have relied upon for centuries. The right of Habeas Corpus, after all, was a primary spark for the rebellion against King George IV of England. We have a social compact among Americans that imprisonment can only be for good cause, and that the government must be able to show probable cause if it wishes to continue to hold someone for a suspected crime.

According to the DC Circuit Court, that is no longer a bedrock principle of our country. A permanent resident can be erroneously labeled as an enemy combatant, based upon mistaken or deliberately falsified information, and be held in prison in Guantanamo Bay, or one of the extraordinary rendition secret prisons under US control around the world, for an indefinite period. There is not even a right to challenge the detention on the basis of mistaken identity in a court of law. It may be America, but it certainly does not sound like the “Land of Liberty” of which we teach our children to sing. And unless we take steps promptly to repair the damage, the entire structure is at risk of collapsing.