Bush's Chilling New Definition of "Unlawful Enemy Combatant"

[Elliot D. Cohen]

Elliot D. Cohen: Bush's Chilling New Definition of "Unlawful Enemy Combatant"
Submitted by BuzzFlash on Sat, 09/30/2006 - 8:26pm. Guest Contribution
A BUZZFLASH GUEST CONTRIBUTION
by Elliot D. Cohen, Ph. D.


George W. Bush has repeatedly warned, "Either you're with us or you stand with the terrorists." Now he has gotten through legislation that allows him to back it up. On Thursday, September 28, 2006, in a hastily drawn decision that will likely live in infamy, the Senate nodded assent to the Military Commissions Act (PDF).

According to this Act, an "unlawful enemy combatant" is to be defined as:


"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."
This basically means that if a person is not a soldier in the service of a foreign government, but is nevertheless engaging in "hostilities" against the United States, then this person is an unlawful enemy combatant. Notice that this definition does not require that such a person be an "alien," which accordingly leaves open the possibility that this designation could also be applied to an American citizen.

This definition as contained in the approved version of the Act, is substantially broader than that included in an earlier version (PDF), according to which a person so designated must also be

(A) part of or affiliated with a force or organization-including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces-engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.

According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? What about an American journalist who publishes leaked information damaging to the Bush administration? What about an anti-Bush blogger? In short, the definition is broad (and vague) enough to include any American citizen who is acting in a way the President deems "hostile" to the United States. As such, it is difficult to imagine a single piece of legislation with greater potential to undermine freedom and democracy in America.

In chapter 948c ("Persons Subject to Military Commissions"), the Act does stipulate that "any alien unlawful enemy combatant engaged in hostilities against the United States or having supported hostilities against the United States is subject to trial by military commission..." (my italics). However, any student of elementary logic knows that, from "All A are "B" it does not follow that All non-A are non-B." In other words, this does not mean that someone who is determined by the President or the Secretary of Defense to be an "unlawful enemy combatant," but who also happens to be an American citizen is therefore automatically off the hook.

The Act also suspends the constitutional protection of habeas corpus, which means that those branded as unlawful enemy combatants can be incarcerated indefinitely without even being charged. And, if the person so branded happens to be an "alien" (say, a Canada citizen) he can no longer use the Geneva Conventions in his defense because "no alien enemy unlawful combatant subject to trial by military commission... may invoke the Geneva Conventions as a source of rights at his trial by military commission."

As for who interprets the meaning and application of Article 3 of the Geneva Conventions, concerning whether or not a prisoner has been tortured, "the President has the authority for the United States to determine the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violation of treaty regulations which are not grave breaches of the Geneva Conventions."

While a list of "grave breaches" is provided in the legislation, the bill enjoins that no foreign or international law shall be used by any U.S. court of law to interpret these breaches. This means that it is up to the President to decide whether or not someone is guilty of torture or other cruel and inhumane violations of the Geneva Conventions. This in turn means that George W. Bush now has the authority to decide whether he himself is guilty of having tortured anyone. And, of course, the provisions of this Act regarding torture have been conveniently made retroactive and take effect as of November 26, 1997.

The Act also makes clear that the President's power to establish military tribunals does not "alter or limit" his authority "to establish military commissions for areas declared to be under martial law..." Now, a presidential declaration of a state of martial law in America might well be the last thing any American would care to envision. Nevertheless, checking the awesome power of government cannot safely be left to chance or the goodness of those who govern. This is why our founding fathers established a system of checks and balances. Unfortunately, with the passage of the 2006 Military Commissions Act, our nation has moved considerably closer to dissolving legal protections that have helped sustain our democracy in the past.

Unfortunately, this conclusion does not appear to resonate with lawmakers who have supported the Act. For example, according to Representative Duncan Hunter, Republican of California and chairman of the Armed Services Committee, "We are dealing with the enemy in war, not defendants in our criminal justice system...In time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops."

However, the war to which this Act applies is not a "war" at all in the conventional sense. The "enemy" is now defined as anyone who is "hostile" to the United States. This is an "enemy" that is not attached to a state government and is not necessarily attached to an organized terrorist group. This "war" knows neither geographical nor temporal boundaries. It is a "war" without end, where "victory" is an empty concept. Empty metaphors have taken over the job of criminal court proceedings and due process, and have instead been misguidedly placed in the hands of a powerful federal government. Ironically, in the ongoing, gradual process of tearing down our internal system of checks and balances, we face a much more ominous and identifiable threat, one that has just, with the passage of this Act, become even more ominous.

A BUZZFLASH GUEST CONTRIBUTION

Elliot D. Cohen is a media ethicist and author of many books and articles on the media and other areas of applied ethics. He is the 2006 first-place recipient of the Project Censored Award for his Buzzflash article, Web of Deceit: How Internet Freedom Got the Federal Ax, and Why Corporate News Censored the Story.

[90-percent]

1. Welcome, Elliot

You got my "greatest page" vote.

Now keep on posting on DU so you can catch up to Will Pitt!

-85% Jimmy

[datadiva]

2. Thanks for posting this Elliott

and Welcome to DU! :kick:

[niyad]

3. it is truly disheartening to me to see how little the kool-ade drinkers

understand about this bill. thank you for sharing this.

and, indeed, a most hearty welcome to DU.

[BlueEyedSon]

4. Exactly... who is "us"? Neocons? Republicans? Fundy Xtians? Bushbots?

If you don't believe in Jay-zus, you are an enemy combatant!

[KitSileya]

6. Or if you're a foreigner critical of the Bush** regime,

or even working against it.

Call me an enemy combatant then - I'll proudly bear the label if it means I'm working any way I can to get Bush out of power and unable to destroy the world, even if it is only by spreading information.

[BlueEyedSon]

7. Being a foreigner in the E.C. definition is *optional*....

[Joey Liberal]

5. We've become a third world country

Welcome to Bush Brothers Banana Republic...............

[bleever]

8. Welcome to DU, Elliot, and

thanks for this article.

[elocs]

9. Does it really make any difference what the law says?

Bush is going to do what he is going to do. If the law limited him in any way he would simply add a signing statement saying his presidential powers allow him to do what he feels is necessary. Who is going to stop him?

[bdamomma]

10. I wish we could stop him.

[elocs]

11. November is our big chance.

Democrats will need the help of some honest Republicans who love their country, because there are some, if Bush is to be totally brought down. It was Senator Howard Baker of Tennessee who was the co chairman of the Watergate hearings who asked, "What did the President know, and when did he know it?" Those kind of Republicans need the courage now to step forward.

[alfredo]

21. Nov 7th will be a step in the right direction.

Start writing the prosecutors in the Hague.

things like this has happened all through history, let's be one of the few that were able to stop the slide into tyranny.

[HereSince1628]

12. Not even spitting distance from totalitarianism...

It's already one-party control (elections have consequences!), and the transition from Democrats are weak on national defense, to Democrats are hostile to national defense is not difficult to imagine at all.

Being an opponent of Republican policy will become being an enemy of the Government.

I'm not sure all of Jamaica has enough bauxite to fill my increasing need for tinfoil.

[D23MIURG23]

22. IMHO this is why the founding fathers gave us the second amendment.

I know it doesn't come off as liberal to say it, but I'm not taking any bullshit lying down. If they decide to criminalize democracy they can drag my cold, dead, corpse to Guantanamo.

On the other hand, I don't think the majority of police and mil personnel are going to be willing to actively oppress their own people either. If all this goes too far there is a real possibility that the brass will revolt and refuse orders. Bush and co only have power inasmuch as other Americans are willing to honor their wishes. Lets all hope this doesn't go that far though.

[The Brethren]

28. Welcome Elliot

"criminalize democracy" that's a very good way of putting it. I was just thinking of coming up with a slogan against this law as a window decal for my car and I think I'll use that.

This law is flat-out wrong and it needs to be repealed.

[MAX 1]

13. I Did Not Speak Up and Now I Wish I Had

http://video.google.com/videoplay?docid=-8855754817065491251&sourceid=docidfeed&hl=en

I Did Not Speak Up and Now I Wish I Had

[Jcrowley]

14. Would you post this in GD please

I just put this up in that forum and would rather see it posted in its entirety by the author and I would pull mine down or let it drowned. Over there it will get more exposure, sadly not as many folks get into Articles forum.

As the American somnambulists drown in the rising tide of insignificance.....

"Circus dogs jump when the trainer cracks the whip, but the really well-trained dog is the one that turns somersaults when there is no whip."
-George Orwell

K&R

[civildisoBDence]

15. An unlawful enemy combatant is a combatant who is not a lawful

enemy combatant...

Sounds like a circular argument to me.

Newsprism

[FighttheFuture]

16. Does this include anyone who is against Bu$hitCo? Like DU, Kos, FDL, ....

and all their members?!

[vixengrl]

24. "Enemy of the United States" *could* be interpreted

to mean "enemy of the current government of the United States in the person ("L'etat est---me, damnit, me, me, me!" cries the Dim Son) of the *Resident." And I'm sure he's got people cooking up the papers on that one right now. :scared: When will people catch on that this is what's really un-American?

[filer]

17. They've met the "enemy" and it's us.

Even Torture Boy Gonzales is now counseling federal judges not to interfere with the War President. We'd better watch our asses the next two years.

[Blackbird_Highway]

18. Hostility

Courtesy of Merriam-Webster:

Main Entry: hos·til·i·ty
Pronunciation: hä-'sti-l&-tE
Function: noun
Inflected Form(s): plural -ties
1 a : deep-seated usually mutual ill will b (1) : hostile
action (2) plural : overt acts of warfare : WAR
2 : conflict, opposition, or resistance in thought or
principle

So, anyone who so much as has thoughts in resistance to the
United States, say by (thinking about) opposing the Iraq war,
is by this definition, an unlawful enemy combatant. Oh woe is
us.

[Straight Shooter]

19. A great welcome to DU in these interesting times, Blackbird Highway.

:hi:

[Voltaire99]

20. "Likely" live in infamy?

They just don't make Donk rhetoric like they used to.

Instead of more hand-wringing and bitching about Republicans, let's do something over which we, as Democrats, actually have some influence. I refer to this Asshole's Dozen:

* Thomas Carper (D-DE)
* Tim Johnson (D-SD)
* Mary Landrieu (D-LA)
* Frank Lautenberg (D-NJ)
* Joe Lieberman (D-CT)
* Robert Menendez (D-NJ)
* Bill Nelson (D-FL)
* Ben Nelson (D-NE)
* Mark Pryor (D-AR)
* Jay Rockefeller (D-WV)
* Ken Salazar (D-CO)
* Debbie Stabenow (D-MI)

All 12 voted for torture.

Does anyone here have a good reason why these people shouldn't be drummed from the party with all haste?

[RC]

23. Any one who does not vote to uphold the neocon way is

an enemy combatant.

[madmusic]

25. K&R

[young_at_heart]

26. It HAS to live in infamy, or we're going to sink

Bush propaganda defines "the enemy" and if people don't realize how very dangerous that is, then the USA has morphed into something else!

[The Brethren]

29. I realize

just how dangerous this law is. Because of it's wording, it can be taken a number of ways. And I would bet if bush and/or the Senators who supported this were confronted in public on just exactly what the wording "hostile" meant for ex., they would try every way they could to reassure the "good folks" of American that it doesn't apply to them and they shouldn't feel alarmed. But words as they say, can be cheap. When it comes right down to it, the wording in this law is what matters most, not their propaganda.

And if there are republicans out there who have read this law --- I hope it's awake-up call for them as well. Because this is not about party lines - it can be used that way. It's a violation of all our rights. And if there are GOP members who should ever dare to cross the chimp in the future, then they can also be classified as "hostile" towards our country according to our government. They are not immune.

Small irony. If this law stays on the books and our next President is a Democrat who chooses to use this law to his/her advantage, then I'll also wager that you will suddenly hear a lot of republicans screaming how "un-American" or "un-Patriotic" it is. And will try and over turn it. However, with the way things are going, by 2008 gawd only knows what more of our Constitution this regime will do away with through Senate approved laws....oh say our right to vote as we know it now or at all. Every time I think they can't make things worse or wouldn't dare pull such a stunt...they prove me wrong.

[CODEPINK]

27. CODEPINK Give Peace A Vote-Please Sign!

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