Part I of this series looked at the history of Habeas Corpus and how this protection ensures that people are not falsely convicted or thrown into the dungeon without fair procedures. It's a last gasp effort to protect the constitutional rights that so many politicians give lip service to. Even if one out of every 10 Habeas Corpus petitions are granted, that's a worthy ratio if that one person was truly innocent and was convicted by way of a trial that violated his constitutional rights.

Looking back

"It can't happen here," they said about fascism in America. But history already tells us what can happen when people are afraid. During World War II, President Roosevelt interned Japanese citizens in a concentration camps in California. This happened because the Japanese bombed Pearl Harbor and the country thought that Japanese citizens would side with Japan in the war. Some people call this a stain on American history. But that's like saying a forest fire was really a campfire where we toasted marshmellows. The Japanese internment program was disgraceful, but the Supreme Court actually said it was legal on the basis that the President had certain powers during wartime that the Courts did not want to second-guess. The Korematsu case was decided in 1944. Technically, it has not been overturned because nationality-based internments have not happened since, and therefore no one was in a position to ask the Supreme Court to repudiate that decision.

When World War II ended, the United States entered into a high-stakes pissing match with the Soviet Union. It's called the Cold War, which ended in 1991 when the Soviet Union collapsed. The fear during the Cold War was that the world's superpowers would engage in nuclear war and that the Soviets would try to take over the United States and spread communist ideology to North America. Somehow, during those difficult times, no one played with the cherished right to Habeas Corpus.

Habeas Corpus for some, not others

This is changing. Last week, President Bush signed into law the Militiary Commissions Act. Every law is subject to interpretation, and there is dispute whether these draconian provisions even apply to American citizens, but commentators seem to agree on the following: for the first time, some people under the military's supervision cannot bring a Habeas Corpus petition in the Federal courts to challenge their detention. Robert Parry, the former Associated Press reporter who uncovered some of the Reagan scandals in the 1980's and now runs a website of independent news and analysis, tells us that the new law:

Creates a parallel “star chamber” system of criminal justice for anyone, including an American citizen, who is suspected of engaging in, contributing to or acting in support of violent acts directed against the U.S. government or its allies anywhere on earth.

The law strips “unlawful combatants” and their alleged fellow-travelers of the fundamental right of habeas corpus, meaning that they can’t challenge their imprisonment in civilian courts, at least not until after they are brought before a military tribunal, tried under special secrecy rules and then sentenced.

One of the catches, however, is that with habeas corpus suspended these suspects have no guarantee of a swift trial and can theoretically be jailed indefinitely at the President’s discretion. Given the endless nature of the “global war on terror,” suspects could disappear forever into the dark hole of unlimited executive authority, their fate hidden even from their families.

While incarcerated, the “unlawful combatants” and their cohorts can be subjected to coercive interrogations with their words used against them if and when they are brought to trial as long as a military judge approves.

The military tribunals also could use secret evidence to prosecute a wide range of “disloyal” American citizens as well as anti-American non-citizens. The procedures are similar to “star chambers,” which have been employed historically by absolute monarchs and totalitarian states.

Even after the prosecutions are completed, the President could keep details secret. While an annual report must be made to Congress about the military tribunals, the President can conceal whatever information he chooses in a classified annex.

Similarly, Amnesty International summarises the law as follows, noting that it will:

Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.

Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.

Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.

Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.

Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.

Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.

Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror", which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee. Amnesty International is concerned that the administration appears on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.

Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President. President Bush has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.

Limit the right of charged detainees to be represented by counsel of their choosing.

Fail to provide any guarantee that trials will be conducted within a reasonable time.
Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.

Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".

Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions". Under President Bush, the USA has shown a selective disregard for the Geneva Conventions and the absolute prohibition of torture or other ill-treatment.

Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.

Another good summary is found at Jurist.com, a website where law professors banter and dissect the issues over glasses of wine:

Pursuant to the habeas-stripping provision, any non-U.S. citizen who has been or will be swept up by the military, the CIA, or our allies and transferred to a secret black-site or Guantanamo Bay, or rendered to another country where they are held and interrogated at the behest of the U.S. government, may no longer have any recourse to a U.S. court. As a result, the administration will have no obligation to put forward to an independent branch of government even a minimal explanation of the basis for a potentially indefinite detention. Nor will there exist any mechanism to check military or CIA abuses, including torture, of detainees. Whatever rights to humane treatment under the Geneva Conventions that remain following the “compromise” between the White House and the Republican Senators (and there is serious question as to whether this was indeed a compromise or a capitulation to the White House) will be meaningless since the habeas-stripping provision unquestionably ensures that those rights will find no day in court and no remedy.

The above summary, written by a Habeas scholar who used to work for Supreme Court Justice John Paul Stevens, explains the consequences of this new law. I quote it here because it summarizes much of the critical commentary lodged in recent weeks about the Military Commissions Act.

This change works a significant destruction of our constitutional heritage for at least two reasons. First, the U.S. Constitution establishes as a fundamental structural premise that there will be three independent branches of government that serve as checks and balances upon each other. Removing entirely the independent judiciary from any role in checking the conduct of the Executive and Congress is a substantial alteration to that structural premise. Second, the writ of habeas corpus has, since this country’s founding, served as a particularly important guardian of liberty. Throughout our history, when the government has captured and detained individuals, the “Great Writ” has served the basic function of guarding against arbitrary government in the form of unjustified and secret detention. Here is how Alexander Hamilton in Federalist No. 84 (quoting Blackstone) powerfully described the critical importance of the writ of habeas corpus:

To bereave a man of life …without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Moreover, these objections to the removal of habeas corpus are not merely academic debating points. We now know with certainty that the U.S. has detained for years innocent men at Guantanamo Bay, such as the five ethnic Uighurs who arrived there after being sold by Pakistani tribesmen for a bounty and the U.S. labeled them enemy combatants with no evidence supporting that designation. It was in part because of the existence of habeas corpus jurisdiction and the pressure of the U.S. Supreme Court’s ruling in the Rasul v. Bush case, which held that non-citizens detained at Guantanamo had a right to file habeas petitions, that these men gained their freedom. The habeas-stripping legislation will overrule Rasul v. Bush, making future challenges to wrongful and indefinite detention impossible. We also know that innocent men such as Maher Arar and Khaled El-Masri have been tortured in the process of secret detention and extraordinary rendition either by or at the behest of the U.S. government. The habeas-stripping provision will eliminate any opportunity for the judiciary to ensure that existing and future detentions are not grounded on torture or other abuse.

Asking questions

Bottom line: if the Department of Defense declares you to be an enemy combatant, you lose all the rights necessary to prove that you were swept up without any basis. Do you trust the Department of Defense to make these decisions fairly? Is the Department of Defense fallable? Do you like the way the Department of Defense has prosecuted the Iraq War, sending in troops without enough body armour, and without any plan to deal with the insurgency, resulting in the death and injuries of thousands of American soldiers? To ask these questions is to answer them.

The new law assumes that governmental officials will act in good faith in rounding people up and placing them in detention. Do you trust the government? Most people do not. Except for the radical centrists who think that public servants always act in the best interests of their constituents, you cannot rest easy knowing that a few decisionmakers can round people up and throw away the key without any judicial oversight. True, many genuine terrorists will be punished under the new rules. But not everyone who is arrested is guilty, and not everyone at Guantanamo is a terrorist. Oversight is to the criminal justice system what sunlight is to open government. Once you close the door, anything can happen. Under the new rules, the lack of oversight means that we may never know whether the detention was improper.

Signing a bill into law makes these policies permanent. Who knows where the war on terror will lead us? What kind of people will replace Bush in 2009 after the next presidential election? Will they be benevolent, or will they make Bush look benevolent? What if there is another terror attack on U.S. soil? Who will get swept up by the government after the next terror attack?

These important questions are made quite worrysome in light of exposes on how the government is actually fighting the terror war. In addition to the botched conflict in Iraq, investigative journalists are raising serious questions about the war on terror. Again, here's Robert Parry:

Robert Dreyfuss covers national security for Rolling Stone. He interviewed nearly a dozen former high-ranking counterterrorism officials about Bush's approach to the war on terrorism. In his article, "The Phony War," (Rolling Stone, 9/21/06) Dreyfuss says these officials conclude:

· The war on terror is bogus. Terrorism shouldn't be treated as if it were a nation to be battled with the military, but should instead be fought with police work and intelligence agencies.

· Terrorism is not an enemy, but a method. Even if the United States were to wipe out every terrorist cell in the world today, terrorism would be back tomorrow.

· Bush lacks a clear understanding of the nature of the "enemy" and has no real strategy for dealing with them.

· The Bush administration confuses the issue by grouping "Al Qaeda" with everything from Iraq's resistance movement to states such as Syria and Iran.

· Today, there's virtually no real "Al Qaeda threat" to Americans.

· Bush's policies have spawned a new generation of "amateur terrorists," but there are few of them, and they're not likely to pose a major threat to the U.S.

· Though Bush has said he will fight his "war" until every last terrorist is eliminated, terrorism can never be defeated, merely "contained and reduced."

Dreyfuss says, "In the short term, the cops and spies can continue to do their best to watch for terrorist threats as they emerge, and occasionally, as in London, they will succeed. But they are the first to admit that stopping a plot before it can unfold involved, more than anything, plain dumb luck."

The future

Some people think the suspension of Habeas Corpus violates the Constitution which says that it can only be suspended in the face of rebellions and the invasion of public safety. But relying on the courts to second-guess the President at times of war is always tricky. Judges do not want to intrude on foreign policy.

The future does not look good for those who care about constitutional rights and preserving democratic rule. Fear will always win out over optimism. The Republican Party has campaigned on fear ever since the mid-term elections in 2002. This time around it's no different. These people are now using Omama bin Ladin in their campaign ads. Anything to win re-election and demomize the opposition. According to CNN:

The advertisement, which is available on the Republican National Committee Web site, is scheduled to run on national news networks Sunday. Republicans are emphasizing national security and terrorism issues in their bid to maintain control of Congress with about two weeks before the November midterms.

The ad features al Qaeda leader Osama bin Laden and his top lieutenant, Ayman al-Zawahiri, speaking, but the only sound is a ticking clock in the background. The terror leaders' quotes are posted on the screen and key phrases in the quotes stand alone as the rest of the quote fades out.

In one instance, bin Laden is quoted as saying, "With God's permission we call on everyone who believes in God ... to comply with His will to kill the Americans." As the text of the quote fades out, "kill the Americans" remains on the screen.

Another bin Laden quote: "They will not come to their senses unless the attacks fall on their heads and ... until the battle has moved inside America" -- fades out, leaving only "inside America" on the screen.

Meanwhile, footage of terrorists engaged in martial arts and weapons training rolls in the background. One scene shows terrorists traversing monkey bars over fire.

The ticking clock morphs into a heartbeat as the ad comes to a close, and the only spoken words on the commercial announce, "The Republican National Committee is responsible for the content of this advertising."

The people behind this despicable advertisement are the caretakers of our constitutional rights. They will do anything to win, even if means scaring the shit out of television viewers who tuned into watch the opera or a situation comedy of the movie of the week. Feel any safer?