By Bill Goodman, Legal Director of the Center for Constitutional Rights
These remarks were made at an Emergency Gathering on Monday Oct. 2nd to respond to the Military Commissions Act of 2006. Held at Cooper Union in New York City and in San Francisco, over 1200 people attended bi-coastal meetings called for the previous Friday afternoon to say we will not be a nation of torturers and we will act now on Oct. 5th to drive out the Bush regime. Over 180 cities are participating in demonstrations on Oct. 5th that will walk out of work, walk out of school, gather in town centers, and march through the streets calling the Bush regime to Halt! Mark Ruffalo (who read a statement by Sean Penn), Olympia Dukakis, Craig Murray, Daniel Ellsberg, Alice Walker, and more participated in the Oct. 2 events. Find a protest near you: www.worldcantwait.org.
In order to really grasp what happened last week, we have to go back about four months. And four months ago we had a real victory, a real victory for constitutional democracy. The United States Supreme Court, 5 to 3, decided the case of Hamdan vs. Rumsfeld. And that case in a very skillful and professional way, the majority opinion by Justice Scalia, in the most technical way, took George Bush and his rotten administration and pushed them all around the room, and in the end said three things. One, the President of the United States and the United States of America has to comply with international law. In this particular case, the Geneva Convention” It means they can’t torture. Two, he said that the president of the United States, when he acts without Congressional Authority acts in-authentically and unconstitutionally and violates the Constitution of the United States. And three, he also said, in a way that was very heartfelt to us at the Center for Constitutional Rights, that the statute that was passed before the opinion which the Government was trying to argue, made what was called the Behavior Detainee Treatment Act retroactive so that all of our cases, all cases for anybody seeking basic constitutional decency in the form of habeas corpus were out of order. He said this is not retroactive, these cases can go forward. That was a victory.
Last week, that victory, to the everlasting shame of the United States Congress was erased from the books. The new act, the Military Commission Act does a number of things and goes even further than this administration had sought to go before.
First of all it creates an incredibly broad and sweeping definition of who is an illegal enemy combatant, unlawful enemy combatant. Now let me just say the term unlawful enemy combatant, it never really hit the books. It was never filed in a statute or law of the United States, it is certainly is not in the Constitution. What we have traditionally understood, in this country and around the world is the concept of a prisoner of war. Someone with basic fundamental rights to be treated decently. This concept was really created and made, and made exploited by the Bush administration in a way which to undermine the Geneva Convention. And really, the whole reason that those people are kept in Guantanamo – and not to mention Bagram, not to mention Ghraib not to mention the Black Sites, all over the world. The only reason is so that the requirements of the Geneva Convention that people not be tortured, could be violated without any judicial intervention. That was their hope.
Now they have defined illegal enemy combatant as anyone who engages in hostilities against the United States. Anyone who provides material support with hostilities against the United States. And if you think about, that could mean anybody who dropped a dollar bill in your basket here tonight. Anybody who has been designated as an enemy combatant by the CSRT (Combatant Status Review Tribunal) – this is a creature that only exists only at Guantanamo – but not only by the CSRT, by any similar commission that is appointed by the President of the United States or anybody who is awaiting such designation. Again, in my humble opinion that might mean many of the people seated in this room tonight, we”re all here. And it is not without reference to the people who are not citizens of the United States, the definition is anyone, citizen or non-citizen of the United States, can be labeled as an unlawful enemy combatants. Now, the statute goes on to do a number of horrible things. All of the horrible things that it does relate only to non-citizens of the United States.
So one might ask why they use such broad language here, such inclusive language, language that would include people who are citizens of the United States as well as non-citizens. And, all I can say is that given what we”ve seen happening in this country, this is merely the beginning of a process. We have not concluded the process. And this part of the process, the definition of enemy combatant is extremely frightening and disturbing.
In addition, this statue says that there can be no habeas corpus relief for anybody held at Guantanamo, anybody who is an illegal enemy combatant who is held at Guantanamo bay, or anywhere else outside in the world, any non-citizen.
I’m here to tell you that the right of habeas corpus is a very basic and important right. It is the basis for what we understand democracy to be. It goes back to 1215, to the 13th century, but goes back long before 1215 in fact, they didn’t invent the idea of habeas corpus all of a sudden in 1215, this was something that had been percolating through society, not only in Western society I might add, for centuries before that. And this incorporated into the constitution of the United States. And what it says is that no one can be held indefinitely. And, if they are they have a right to go in front of a magistrate or judge and demand that they be, that the judge make a determination as to whether they are charged with the crime and whether there is any evidence to hold them. And if there is not, the magistrate, the judge, can order the king, the police, the FBI or anyone or George W. Bush, President of the United States to let them go. That’s what habeas corpus is. Without it we are virtually slaves to a police state. And this was a massive suspension of the writ of habeas corpus. It has only happened four times that there has been a Congressional suspension of the writ of habeas corpus. Only four times in American history.
And each time it has been narrow and it has been limited and it has been focused and I”ll tell you what they are. One was in the confederacy, during the civil war in the middle of hostilities. Another was the uprising in the Reconstruction states by the Klu Klux Klan. Another was 1902, during an insurrection in the Philippines, undoubtedly a just war on the part of the Philippine people, by the way. But the Philippines were a so-called territory of the US at that time, and in the Philippines during that insurrection and only during that insurrection the writ was suspended. And finally, it was suspended for a brief period of time in Hawaii immediately after Pearl Harbor. And that’s it!
This is broad, this is sweeping, this is endless, this does not does not limit to a particular narrow geographic location or a very small period of time, this we have now to live with for many years and perhaps decades to come and it is a shame and a scandal that the United States Congress passed this statute.
I just want to say a word about torture, because, guess what, the new Military Commissions Act authorizes torture, you may be shocked to learn. What it says is what this so-called, the phony McCain, Graham, Warner fight against the president in order to adhere to the Geneva Conventions went down like ” like a rock. And what we have ended up with is grave breaches of the Geneva Conventions are still punishable under the War Crimes Act. Before this statute was passed, all violations of the Geneva Conventions were punishable under the War Crimes Act. Not that there was ever any prosecution under the War Crimes Act. Now its only grave breaches. And who decides what is not a grave breach? There are a few things that were listed such as torture, which means permanent physical damage, permanent psychological damage. If there are waterboarding for example is still perfectly okay and the President of the United States would say it’s okay. And it’s interesting, during the debate of the Military Crimes Act, on the floor of Congress, Senator Graham and Senator McCain stood up and said, “Well, this means that waterboarding is no longer, is a grave violation of the Geneva Convention, a grave breach of the Geneva Convention.” The attorney for the Department of Justice went out of his way almost immediately to say, “We don’t read it that way. It’s unclear. Waterboarding may be perfectly okay.” And waterboarding, I don’t care what they say, if I’m being waterboarded, I know I’m being drown or I could drown.
Now, what we started out with four months ago was with a winning Declaration of Independence by the Supreme Court of the United States. The President of the United States can only go so far and no further. Congress has to its everlasting discredit laid down on its back, stuck its arms and legs up in the air and whined and swallowed everything this President has fed it. The fight isn’t over. We can still go to the court. We can still try to win it in the courtroom. We can try to win it in the streets. We have to win because if we lose these rights, we have lost democracy.
You know it’s interesting, I am sure you all read about the fact that the national intelligence evaluation is now finally getting leaked, and guess what? The war in Iraq has really caused more terrorism than it has eliminated. Duh. So everybody knew that. Everybody knew it was going to happen we all knew, there were half million people out on the streets of this city on February 15th, 2003. Remember? We knew it. That’s what we were saying. And they heard us and they – the real question is, knowing that, why is it that this President went into Iraq trying encourage and create and build and enhance terrorism. Because these are the people who are determined, bound and determined to destroy our Constitution and our Bill of Rights, and we will not let them do it.
When you”re as old as I am, and maybe there will be other people in the room who are, you can remember a little bit about the McCarthy period, and I hope that you have all seen the movie about McCarthy called, Good Night and Good Luck, it’s a great movie. The message in that movie is, the message in that movie is that tyranny thrives and democracy dies in the face of three things: silence, secrecy and fear. I’m here to tell you and you”re here to tell me, we are not afraid, there are no more secrets, and we will speak out!
