Every government claims the power to arrest people, but just societies give the accused the right to demand that a court decide whether imprisonment should continue. Just societies also demand that prisoners be treated humanely. These principles are enshrined in our Constitution as the right of habeas corpus and the prohibition against cruel and unusual punishment.
More precisely, the principles were enshrined until this month, when Congress passed and President Bush signed the Military Commissions Act. Both of Maine’s House representatives, Tom Allen and Mike Michaud, voted against the bill, but it was supported by Sens. Olympia Snowe and Susan Collins.
On Oct. 19, a delegation presented the Bangor offices of the two senators with a letter signed by 146 Mainers to protest this support. There are good reasons to be both upset and frightened.
The act grants our government the power to classify as an enemy combatant anyone who provides “material support” to organizations that the government deems are linked to terrorism. These persons can be arrested at the whim of and tried by military tribunals with appeal only to the president or other military tribunals. The tribunals can order indefinite detention based on hearsay, rumor, faulty intelligence, so-called secret evidence, or malice. The new law does not limit its scope to persons captured while trying to kill American troops or to an extraordinary situation where police believe that a terror attack is imminent. Material support can consist, for example, of donating money to an organization that the government later decides has unsavory connections.
U.S. citizens imprisoned under the new law retain in some cases the right to file a writ of habeas corpus, but only in the federal court in the District of Columbia. This restriction would be extremely cumbersome in the event of mass arrests similar to the detention of more than 100,000 ethnic Japanese during World War II or the warrantless arrest of 6,000 alleged U.S. subversives on Jan. 2, 1920. Even if petitions could be heard by the court, the law still enables the government to jail people for years or for life based on less evidence than would ordinarily be required to obtain an arrest warrant for shoplifting.
The new law also excuses the network of overseas CIA prisons which President Bush recently admitted had been secretly established outside the reach of American courts, and it authorizes the president to permit in these prisons any interrogation tactic which he considers humane. The current definition of humane is a No Marks Left Behind policy that has allowed American interrogators to bind detainees in agonizing positions for long periods, to expose them nearly naked to extreme cold, and to practice waterboarding, in which soaked cloths are pressed over the face of an immobilized victim so that the precise physical reactions of drowning are induced. The new law holds that these methods are not torture because the president says that they are not torture.
Aside from the question of im-morality, there is the problem that after a few weeks of such treatment, most people would sign a confession in Latin admitting to the assassination of Julius Caesar. Evidence obtained this way, which should be discarded with disgust by any rational judge or jury, is now, by statute, held to be admissible, as is evidence obtained after the illegal deportation of suspects to brutal nations whose definition of torture is less restrictive than our own.
The body counts of Iraqi insurgents and of American soldiers and Marines will continue to rise. Perhaps one day bin Laden himself will stand in front of a judge or lie under the gun of a Navy SEAL. In the end, none of this will affect the outcome of the First War Against Terror.
The murderers of 2001 and their handlers knew that the destruction of three buildings would not topple a great country. Their goal was to destroy the essence and the moral authority of the United States. Now a Congress fixated on its own re-election and an administration that has displayed staggering arrogance have granted the Sept. 11 bombers their dying wish.
Our Constitution has been undermined. Our executive has been handed police powers which Americans once believed existed only in distant totalitarian states. This nation, conceived in liberty, now condones torture as official state policy. We will fight other wars in other places, but the war that began five years ago in Manhattan and Arlington ended this month. Al-Qaida has won.
L. Paul Gilden is a teacher and writer who lives in Blue Hill. E-mail: firstname.lastname@example.org.