MB Civic

Weekend Edition
September 30 / October 1, 2006

A Constitutional Shredding
Rounding Up U.S. Citizens
Counterpunch
By MARJORIE COHN

The Military Commissions Act of 2006 governing
 the treatment of detainees is the culmination
of relentless  fear-mongering by the Bush
administration since the September 11 terrorist
attacks.

Because the bill was adopted with lightning speed,
barely anyone noticed that it empowers Bush to
declare not just  aliens, but also U.S. citizens,
“unlawful enemy combatants.”

Bush & Co. has portrayed the bill as a
tough way to deal with aliens to protect us
against terrorism. Frightened they might
lose their majority in Congress in the
November elections, the Republicans
rammed the bill through Congress with
little substantive debate.

Anyone who donates money to a charity
that turns up on Bush’s list of “terrorist”
organizations, or who speaks out against
the government’s policies could be
declared an “unlawful enemy combatant”
and imprisoned indefinitely. That includes
American citizens.

The bill also strips habeas corpus rights
from detained aliens who have been
declared enemy combatants. Congress has
the constitutional power to suspend
habeas corpus only in times of rebellion or
invasion. The habeas-stripping provision in
the new bill is unconstitutional and the
Supreme Court will likely say so when the
issue comes before it.

Although more insidious, this law follows in
the footsteps of other unnecessarily
repressive legislation. In times of war and
national crisis, the government has
targeted immigrants and dissidents.

In 1798, the Federalist-led Congress,
capitalizing on the fear of war, passed the
four Alien and Sedition Acts to stifle
dissent against the Federalist Party’s
political agenda. The Naturalization Act
extended the time necessary for
immigrants to reside in the U.S. because
most immigrants sympathized with the
Republicans.

The Alien Enemies Act provided for the
arrest, detention and deportation of male
citizens of any foreign nation at war with
the United States. Many of the 25,000
French citizens living in the U.S. could have
been expelled had France and America
gone to war, but this law was never used.
The Alien Friends Act authorized the
deportation of any non-citizen suspected
of endangering the security of the U.S.
government; the law lasted only two years
and no one was deported under it.

The Sedition Act provided criminal
penalties for any person who wrote,
printed, published, or spoke anything”false,
scandalous and malicious” with the intent
to hold the government in “contempt or
disrepute.” The Federalists argued it was
necessary to suppress criticism of the
government in time of war. The
Republicans objected that the Sedition Act
violated the First Amendment, which had
become part of the Constitution seven
years earlier. Employed exclusively against
Republicans, the Sedition Act was used to
target congressmen and newspaper
editors who criticized President John
Adams.

Subsequent examples of laws passed and
actions taken as a result of fear-mongering
during periods of xenophobia are the
Espionage Act of 1917, the Sedition Act of
1918, the Red Scare following World War I,
the forcible internment of people of
Japanese descent during World War II, and
the Alien Registration Act of 1940 (the
Smith Act).

During the McCarthy period of the 1950s, in
an effort to eradicate the perceived threat of
 communism, the government engaged in
widespread illegal surveillance to threaten
 and silence anyone who had an unorthodox
 political viewpoint. Many people were jailed,
blacklisted and lost their jobs. Thousands of
lives were shattered as the FBI engaged in
“red-baiting.”

One month after the terrorist attacks of
September 11, 2001, United States
Attorney General John Ashcroft rushed the
U.S.A. Patriot Act through a timid Congress.
The Patriot Act created a crime of domestic
terrorism aimed at political activists who
protest government policies, and set forth
an ideological test for entry into the United
States.

In 1944, the Supreme Court upheld the
legality of the internment of Japanese
and Japanese-American citizens in
Korematsu v. United States. Justice Robert
Jackson warned in his dissent that the
ruling would “lie about like a loaded
weapon ready for the hand of any
authority that can bring forward a
plausible claim of an urgent need.”

That day has come with the Military
Commissions Act of 2006. It provides the
basis for the President to round-up both
aliens and U.S. citizens he determines have
given material support to terrorists.
Kellogg Brown & Root, a subsidiary of
Cheney’s Halliburton, is constructing a
huge facility at an undisclosed location to
hold tens of thousands of undesirables.

In his 1928 dissent in Olmstead v. United
States, Justice Louis Brandeis cautioned
“The greatest dangers to liberty lurk in
insidious encroachment by men of zeal,
well meaning but without understanding.”
Seventy-three years later, former White
House spokesman Ari Fleischer, speaking
for a zealous President, warned Americans
they need to watch what they say, watch
what they do.

We can expect Bush to continue to exploit
9/11 to strip us of more of our liberties.
Our constitutional right to dissent is in
serious jeopardy. Benjamin Franklin’s
prescient warning should give us pause:
“They who would give up an essential
liberty for temporary security, deserve
neither liberty or security.”

Marjorie Cohn, a professor at Thomas
Jefferson School of Law, is president-elect
of the National Lawyers Guild, and the U.S.
representative to the executive committee
of the American Association of Jurists. Her
new book, Cowboy Republic: Six Ways the
Bush Gang Has Defied the Law, will be
published in 2007 by PoliPointPress.