The administration is obviously aware of the transparent, and really quite pitiful, election-based fear that is consuming Democrats and rendering them unwilling to impede (or even object to) the administration's seizure of more and more unchecked power in the name of fighting terrorism. As a result of this abdication by the Democrats, the Washington Post reports, the administration spent the weekend expanding even further the already-extraordinary torture and detention powers vested in it by the McCain-Warner-Graham "compromise." To illustrate just how profoundly dangerous these powers are, it is worthwhile to review a specific, current case of an actual detainee in the administration's custody.
Bilal Hussein is an Associated Press photographer and Iraqi citizen who has been imprisoned by the U.S. military in Iraq for more than five months, with no charges of any kind. Prior to that, he was repeatedly accused by right-wing blogs of being in cahoots with Iraqi insurgents based on the content of his photojournalism -- accusations often based on allegations that proved to be completely fabricated and fictitious. The U.S. military now claims that Hussein has been lending "support" to the Iraqi insurgents, whereas Hussein maintains that his only association with them is to report on their activities as a journalist. But Hussein has no ability to contest the accusations against him or prove his innocence because the military is simply detaining him indefinitely and refusing even to charge him.
Under the military commission legislation blessed by our Guardians of Liberty in the Senate -- such as John McCain and Lindsey Graham -- the U.S. military could move Hussein to Guantánamo tomorrow and keep him there for the rest of his life, and he would have absolutely no recourse of any kind. It does not need to bring him before a military commission (the military only has to do that if it wants to execute someone) and as long as it doesn't, he is blocked from seeking an order from a U.S. federal court to release him on the ground that he is completely innocent. As part of his permanent imprisonment, the military could even subject him to torture and he would have no legal recourse whatsoever to contest his detention or his treatment. As Johns Hopkins professor Hilary Bok points out, even the use of the most extreme torture techniques that are criminalized will be immune from any real challenge, since only the government (rather than detainees) will be able to enforce such prohibitions.
Put another way, this bill would give the Bush administration the power to imprison people for their entire lives, literally, without so much as charging them with any wrongdoing or giving them any forum in which to contest the accusations against them. It thus vests in the administration the singularly most tyrannical power that exists -- namely, the power unilaterally to decree someone guilty of a crime and to condemn the accused to eternal imprisonment without having even to charge him with a crime, let alone defend the validity of those accusations. Just to look at one ramification, does one even need to debate whether this newly vested power of indefinite imprisonment would affect the willingness of foreign journalists to report on the activities of the Bush administration? Do Americans really want our government to have this power?
The changes that the administration reportedly secured over the weekend for this "compromise" legislation make an already dangerous bill much worse. Specifically, the changes expand the definition of who can be declared an "enemy combatant" (and therefore permanently detained and tortured) from someone who has "engaged in hostilities against the United States" (meaning actually participated in war on a battlefield) to someone who has merely "purposefully and materially supported hostilities against the United States."
Expanding the definition in that way would authorize, as Kate Martin of the Center for National Security Studies points out, the administration's "seizure and indefinite detention of people far from the battlefield." The administration would be able to abduct anyone, anywhere in the world, whom George W. Bush secretly decrees has "supported" hostilities against the United States. And then they could imprison any such persons at Guantánamo -- even torture them -- forever, without ever having to prove anything to any tribunal or commission. (The Post story also asserts that the newly worded legislation "does not rule out the possibility of designating a U.S. citizen as an unlawful combatant," although the Supreme Court ruled [in the 2004 case of Hamdi v. Rumsfeld] that there are constitutional limits on the government's ability to detain U.S. citizens without due process.)
The tyrannical nature of these powers is not merely theoretical. The Bush administration has already imprisoned two American citizens -- Jose Padilla and Yaser Esam Hamdi -- and held them in solitary confinement in a military prison while claiming the power to do so indefinitely and without ever having to bring charges. And now, it is about to obtain (with the acquiescence, if not outright support, of Senate Democrats) the express statutory power to detain people permanently (while subjecting them, for good measure, to torture) without providing any venue to contest the validity of their detention. And as Democrats sit meekly by, the detention authority the administration is about to obtain continues -- literally each day -- to expand, and now includes some of the most dangerous and unchecked powers a government can have.