By C. William Michaels,
Attorney-at-Law, Pax Christi Baltimore, January 11, 2008
Six years ago, few average Americans had heard of the Navy base at Guantanamo Bay. Now, the Camp Delta Facility at Guantanamo Bay is a universal symbol of the United States’ war on terrorism. And it is a watchword for just how far this administration, supported by Congress, is willing to go, in a legislative and political crusade of vengeance that knows no end. Camp Delta has now become a deeper symbol of this country’s war with itself as its own core values are under attack, not by terrorists, but by the executive, the congress, and the courts.
Hundreds of detainees remain confined at Camp Delta, by the Department of Defense, under conditions that should shock every American. Our government calls these people enemy combatants and says they cannot claim protections of the Geneva Convention.
They have been confined, for years, without charge, without readily available access to counsel, without personal visits from family, with strictly controlled access to the outside world. They are subjected to intense methods of interrogation which if not producing physical injury, are limited in type and nature only by the imagination.
When detainees first arrived, the government not only said that they had no Geneva Convention rights, but also had no right of access to our courts. The right of habeas corpus (Latin for “produce the body”) is a core value of our legal system. It goes back to English Common Law. It is mentioned in our Constitution. It allows a person who claims to be unlawfully detained, to ask a court to review the reasons and conditions of that detention. The government said these detainees had no habeas corpus rights because, among other reasons, Guantanamo Bay is not strictly us soil and so was out of the reach of federal courts.
The government claimed it could try these detainees by military commission with little or no court review, and could issue its own regulations for commission trials. The first round of those regulations were a mockery of other core values of right against self-incrimination, right to counsel, right to be confronted with evidence, and right to an impartial trial.
In 2004 and 2006, the Supreme Court upset the apple cart. It ruled that these detainees had the right to habeas corpus, should have a determination of enemy combatant status, and the government cannot invent its own military commission without the consent of Congress and cannot invent commission rules as it saw fit.
The administration was not deterred. With support of congress, we now have the Detainee Treatment Act and the Military Commissions Act. The Military Commissions Act effectively eliminates the right of habeas corpus for these detainees. The government now says the Detainee Treatment Act and the Military Commissions Act are retroactive – meaning any habeas corpus petition already filed by any Guantanamo Bay detainee must be dismissed permanently. And with these statutes we redefine other core values including what torture is – that is authority now reserved to the President.
The administration now has exactly what it wanted, from the beginning: legal limbo for detainees while it does what it wants to them, in a total exercise of executive power. The President claims this power as Commander-in-Chief in a time of war. But Congress has not declared war. The authorization for use of military force, passed after September 11, doesn’t cover all acts and pave all roads.
Congress does not seem to care. For it is working on legislation even more troubling. Americans are expected not to care, because after all we are not enemy combatants. The administration is hoping the Supreme Court will not care. We are here today to say that we, Americans, and the rest of the world, must care. Because there is more at stake than even questions of who is an enemy combatant or the right of habeas corpus.
What is at stake is our national future. Do we want to know how it happens, how a society moves farther and farther from core values, until one day we wake up and wonder where we are? This is how it happens. Argument by argument, bit by bit, one detention at a time, one statute at a time, one court decision at a time, one step at a time, until we pass the point of no return, as the population gives over its authority to a supreme executive who then, without accountability, wields supreme power.
What is at stake also, is how fast a lie can move. Because the government has called American citizens enemy combatants. The Supreme Court has said the government can do that. Other federal courts have affirmed it. How long will it be before enemy combatants are treated the same whether they are citizens or not? A government official was once asked how long an enemy combatant can be detained. The answer was, “until the war is over.” if that means, until the war on terrorism is over, then, friends, we are in a new world. And what will habeas corpus mean then?
The real war is not just this war of vengeance. It is the war within ourselves. “Vengeance is mine, sayeth the lord.” that means, vengeance is not ours. Many in our officialdom say this is a Christian country. Then we must ask, if enemy combatants are really our enemies, what did Jesus say we must do with our enemies? So this struggle is more than academic legal principles. This is nothing less than a struggle for our national soul.
We cannot falter in this struggle, no matter how long it takes. We can no longer be content with fighting the good fight. Today, we must win the good fight. We have no other choice! Silence is consent. Apathy is complicity. If not us, then who? If not now, then when?
The supreme Court’s decision, whatever it is, will not end this struggle. We must shut down Camp Delta. Repeal the Military Commissions Act. We must bring this country back to its senses. And pray that it happens in time.
