Flushing Democracy

Woooooossssshhhhh!

gurgle

You know when you flush your toilet? You hear that sound of the bowl filling and then draining, then that short pause as the water escapes down the drain, leading to the usual last little gurgle of the water settling. For us, that is the sign that the toilet has officially flushed.

Our country has just heard that gurgle.

The Court of Appeals for the Fourth Circuit ruled 5-4 on July 15th that the federal government has the right to detain anyone (including citizens and legal residents) indefinitely, without a trial, AND with the government’s ability to label someone an ‘enemy combatant’ without determining proof that the individual has taken direct or even indirect violent or military action against the United States.

gurgle

We’ve been listening to the flushing sound ever since September 12^th, 2001. When the Supreme Court ruled that habeas corpus extends to Guantanemo Bay, we heard that moment of silence. Then this gurgle. But I’ll give you a second to let the above sink in.

According to this ruling, described in an article for Alternet, which includes acknowledgments from the majority opinion, the U.S. government has the right to claim any person at any time anywhere an ‘enemy combatant’, and despite the oldest rule of modern law (habeas corpus), detain that person in isolation indefinitely. The separation between this and Pinochet’s Chile is now gone.

Since 2002 and the declared War on Terror, we have gone back and forth about terms and about concepts. We avoided using the term Prisoner of War because that would require our following the Geneva Convention. We were told that ‘enemy combatants’ are synonymous in the “good” ways, but afford us more “freedom” in handling prisoners. Yeah, right. We made up the term ‘enemy combatant’ as a means of treating American citizens and legal residents as if they had plotted and implemented 9/11.

We also argued that the concept of ‘enemy combatants’ was, like prisoners of war, determined by the length of the conflict. “We have to hold these people so that they don’t rejoin the fighting” they argued. Except that we are in the midst of one of the longest armed conflicts in U.S. history, and one that Attorney General Mukasey is looking to extend indefinitely and without direction (a new request for authorization for military action anywhere at any time is coming before Congress right now). We were promised that ‘enemy combatants’ wouldn’t be held but for a couple of years, only as long as a) useful intelligence could be gathered and b) the couple of years we would be fighting. Now we are looking at a permanent legal black hole in which the president might shove dissenters.

We used to be afraid of new McCarthyism. But McCarthy was an angry man demanding his way. What if we greased the wheels and cleared the tracks for the next one? What happens when we hand over the keys to the kingdom for miniscule hypothetical and potential benefit?

Here’s a reminder course:

The Suspension Clause:

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The Due Process Clause:

in Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

and Fourteenth Amendment:
(from Section 1)

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Not to mention these other areas, also affected:

The Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

And the Eighth Amendment:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The person on trial, Ali Saleh Kahlah al-Marri, was entering grad school in 2001. He was arrested and in 2003, was labeled an enemy combatant and locked up in solitary confinement where he was tortured repeatedly and has yet to be relieved from “harsh interrogation” despite military urgings. He has a wife and five children that haven’t seen him in seven years.

The following is an excerpt from the dissenting opinion, authored by Judge Diana Gribbon Motz:

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them 'enemy combatants,' would have disastrous consequences for the Constitution -- and the country…For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws 'to go unexecuted, and the government itself to go to pieces.' We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

God save us.