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We Americans really ought to be ashamed

By ROBYN E. BLUMNER
Published October 8, 2006


Did you hear that click, like the turning of a dial, auguring a new America?

It happened on Sept. 29 at 2:47 p.m. That was the seismic minute that Congress passed the Military Commissions Act and formally granted President Bush royal powers he had been unilaterally arrogating. The historic action may one day be remembered as the moment the great American experiment in liberty ended. It was a good run.

You see, it is one thing for a renegade executive to crown himself like Charlemagne and declare that his (cough) wisdom is exceptional enough to designate Americans and foreigners as enemies to be detained indefinitely. It is quite another for 315 members of Congress to go along. When the people's representatives collude to collapse the separation of powers into one omnipotent executive, our nation becomes defined by that act. We are a nation of laws, even when it's a really bad one.

Republican leaders in Congress were in a quandary because Bush had proven that he could not be trusted to respect the boundaries of law, and the Supreme Court called him on it. In striking down Bush's kangaroo military tribunals and resurrecting the Geneva Conventions, the court said that the president couldn't ignore U.S. law and international commitments without Congress' explicit assent. So Congress assented. Problem solved.

America's bedrock principles may be a pile of rubble, but the Republican president won a political victory. Proving once again that there is no national conscience anymore. Holding power is all that matters.

So now, under the newly enacted military commissions, as long as a military judge rules the evidence reliable and it was obtained before 2006, it can be admitted even if the evidence was drawn out of someone by freezing him or almost drowning him or keeping him awake and on his feet for days. Hey, it's the new American way, which sounds an awful lot like the old European way.

Besides, we had to change the rules otherwise we could never have gotten a conviction against those 14 men that we had secreted away and done things to. The rules had to be adjusted, or more accurately, broken and reset.

Bush, with his reverse Midas touch, has led this nation into a muck-pile of intractable problems. But even had Bush been the most talented chief executive in history, Congress should not have handed him the powers it did under the Military Commissions Act.

The right to habeas corpus, which is the ability to get before a judge to challenge the legitimacy of your imprisonment, is nonnegotiable. Congress may suspend habeas corpus only in cases of invasion or rebellion, according to the express terms of the Constitution.

But Congress has now eliminated habeas rights for noncitizens not in response to a massive invasion, but an amorphous "global war on terror" where the enemy is anyone seeking to do us or our friends harm.

The law's most immediate consequence will be extinguishing the pending habeas corpus claims of hundreds of detainees in Guantanamo and other detention sites. Many of these prisoners have been in our custody for years, and the bulk of them are not even members of al-Qaida, according to the Pentagon. Now they have no hope of getting their day in court under a fair process.

The Military Commissions Act also contains a fatal thrust against the Geneva Conventions, making them unenforceable. The president is given explicit authority to interpret violations of Common Article 3 of the Conventions beyond "grave breaches." Bush will be free to determine what abuses by interrogators do not rise to the level of "humiliating and degrading treatment." Then detainees will be barred from court to challenge that treatment.

The law is a true abomination. It is our fault. We let this happen. We allowed them to draw the false dichotomy between security and freedom. We accepted Bush's Torture Nation and his untouchable island prison.

Judge Learned Hand said "Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it." Americans no longer understand what liberty means. They think it has something to do with tax-free shopping and their right never to be offended by others' opinions.

E Pluribus Unum be damned. Here's America's new motto: If we can't pronounce your name, we don't care what happens to you. Now let us get back to our Happy Meals.