The dire state of human rights for noncitizens
This blog posting won’t suffice, but then again, it doesn’t have to. If the president decides I am an unlawful enemy combatant, then I am an unlawful enemy combatant; it’s that simple, United States citizen or not. And because, as a noncitizen, I would be labeled an alien unlawful enemy combatant, I would not have any chance of protesting the charge.
As an unlawful enemy combatant, United States citizen or not, you could be flown to Guantanamo Bay, beaten by interrogators, and left alone in a cold, brightly lit room, naked, for a couple of days. And the worst thing is, as an alien unlawful enemy combatant, I wouldn’t be able to do a thing about it. I would not have any rights or protection; simply because I am a noncitizen and habeas corpus has been abolished for noncitizens.
In all reality, I would never be labeled an unlawful enemy combatant, so I don’t have anything to worry about. I haven’t even accrued any parking or speeding tickets and my phone calls abroad are on the subject of the weather in the Netherlands and how the week has been. Most United States citizens too, they have nothing to worry about.
Perhaps that’s why there has been little public outrage about the newly passed Military Commissions Act of 2006. Nobody realistically has anything to worry about. Well, except for some noncitizens who might mistakenly be labeled unlawful enemy combatants and can’t do anything about it. But, you know, though luck for them.
So, not worrying about it all, I decided to read the Military Commissions Act. It is a though collection of words to get through (another reason why I am in public relations, not in law) and the tricky thing is that every word—and its definition—matters when interpreting the law.
By the end, I have to admit, I was quite worried. Not for me, not for United States citizens, and not even so much for those unlucky few. I was worried about how, when most of us don’t have anything to worry about, these issues don’t spark a public outrage. When most people’s rights are not at stake (in this case the habeas corpus right was only at stake for noncitizens), these horribly authoritarian and abusive laws can get passed without a hitch.
The United States constitution was designed as a shining example for other nations. It was not designed to protect the country’s citizens, and its citizens only. But I suppose some animals are forever more equal than others. Decide for yourself, as I list some of the key points of The Military Commissions Act of 2006 (Engrossed as Agreed to or Passed by Senate):
Who is an unlawful enemy combatant?
“a person [citizen or not] who has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”
Or as The Nation’s David Cole explains:
“Under this definition, if a military tribunal were to declare Kofi Annan an enemy combatant, he would be, because the law does not require that the person meet any objective criteria for the designation.”
What about habeas corpus?
(the determination in court whether or not a person is imprisoned lawfully)
“No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
The Nation illustrates this with the current Guantanamo cases:
“Detainees are relegated to sharply limited review in the DC Circuit, which can only review the legal sufficiency of a Combatant Status Review Tribunal finding. Since the “enemy combatant” definition described above makes the tribunal’s finding conclusive, however, this review is meaningless. If anyone whom the tribunal says is an enemy combatant thereby is one, there will be nothing for the DC Circuit to review.”
What about the Geneva Convention?
(the set standard for international law on humanitarian concerns)
“No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.”
“As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.”
Anything else we should worry about?
There are some provisions that do not apply to trial by military commission of any, citizen or not, unlawful enemy combatants. These laws include:
Laws “relating to speedy trial, including any rule of courts-martial relating to speedy trial.” This effectively rules out the right that “immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
Also, laws “relating to compulsory self-incrimination.” This effectively rules out, among other things, that “no statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.”
And last, laws “relating to pretrial investigation.” This effectively rules out, again among other things, that “the accused shall be advised of the charges against him and of his right to be represented at that investigation.”
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