It could happen so easily.
While in Medellín in July, I met with a representative of the ELN guerrillas. I also met with leaders of former paramilitaries, who may or may not have ceased to be members of what used to be called the AUC. Both groups are on the State Department’s list of foreign terrorist organizations.
Suppose that, for some bizarre reason, I decided to give one of those individuals a twenty-dollar bill. For good measure, I had a picture taken of myself handing over the bill, and made that picture publicly available.
This would have been a strange thing to do, of course. But as of yesterday, it would also have given the U.S. government all the pretext it needs to lock me up indefinitely, subject me to mild torture, and secretly try me in a military court.
Under the Military Commissions Act of 2006, which President Bush signed into law yesterday, I could be considered an "unlawful enemy combatant" for giving that $20 – "material support" – to a known international terrorist. Actually, it’s not even clear whether I would have to give that money; the law could be interpreted as empowering President Bush or Secretary of Defense Rumsfeld to apply the "unlawful enemy combatant" tag to anyone they don’t like. The law defines an "unlawful enemy combatant" as, simply,
a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, 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.
As an "unlawful enemy combatant," I could be arrested and held indefinitely in a military stockade or a civilian prison. The U.S. government would not need to inform me of the charges against me, or even to set a date for my trial. I could be held in conditions of extreme discomfort – loud music at all hours, kept unclothed in a 50-degree room with cold water thrown on me, anything that is not "a substantial risk of death," "extreme physical pain," "a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises)," or "significant loss or impairment of the function of a bodily member, organ, or mental faculty."
Eventually, I might be brought before a tribunal made up entirely of military officers. The prosecution can use secret evidence against me, which my appointed defense counsel might not be able to view. Only three-quarters of the officers need agree on my guilt in order to sentence me.
This sounds like a preposterous scenario, and hopefully it is. But it is now a perfectly legal scenario, thanks to this awful law.
Here’s a translation of the editorial that El Tiempo – Colombia’s most-circulated newspaper and one of the principal voices of that country’s elite, mainstream opinion – published on October 1, after the U.S. Congress hurriedly approved the Military Commissions Act. Recall that while Colombia has its own severe human rights problems, its legislation is now much more progressive than our own.
A Shameful Law
September 28, 2006 will go down in history as a sad day for the United States and for democracy everywhere. It was last Thursday when the U.S. Senate approved the Bush Law, an extraordinary attack on human rights that the New York Times calls "the tyrannical anti-terrorist law." According to that newspaper, this episode is "one of the lowest" in that nation’s history.
Democracy is the sum of many philosopical values inspired by liberty and human dignity, and many participative measures for achieving them. This time, the measures conspire against the principles, as the institutional formality of the Congress is employed to take an abrupt leap backward in history. The law approves the abuses committed by George Bush’s government in the past few years against those accused of terrorism, and incorporates alarming restrictions on human rights: the government is authorized to detain in any country, any foreign citizen [note - and any U.S. citizen] suspected of collaborating with terrorism (as the U.S. government defines terrorism) and to classify anyone it wants as an "unlawful enemy combatant." This category is sufficient to submit this individual to the regime of denied rights that the Capitol just approved, which includes indefinite detention without appeal in jails that only the military knows of and administers, and suspension of habeas corpus (the statute that regulates privation of liberty). No civilian tribunal may intervene in these processes, except to review final verdicts. The President will define what tortures are acceptable and will unilaterally interpret the Geneva Conventions. The methods of extracting information from prisoners, as well as other elements of the trial, will be secret.
To approve such a code, which is more appropriate to military dictatorships, the White House used a contemptible strategy: to sow electoral panic among members of Congress. Six weeks before legislative elections, with Bush’s approval at a low point, the government and the Republican majority played the fear card. Resorting to a Manichaean strategy, they proclaimed: "Whoever votes against this bill is with the terrorists." This is how they dismantled the indignant opposition to this initiative within the Republican Party itself, and how they intimidated more than one Democratic legislator. This is the tone that will predominate in the campaign. And while the opposition hopes to win six key seats [in the Senate], which could turn around control of the Capitol, the Republicans will continue to play upon the electorate’s darkest fears of terrorism.
The approval of this horrible law opens a dangerous Pandora’s box. The United States’ democracy has been an example to the world for two centuries. Now, its limitations will inspire similar retrenchment in other countries’ laws. The same thing will happen with human rights, beaten back by a majority vote. Many despots will think that they have a green light for their procedures, and it is probable that the first to suffer from it will be U.S. citizens and soldiers overseas. Countries that cooperate broadly with Washington, like Colombia, have the right to ask whether extraditing citizens accused of terrorism, only to see them submitted to this new regime, violates their own constitutions. And there are more questions. What do the United States’ allies think of all of this? How will it be viewed by international courts, though that country doesn’t recognize their jurisdiction except when other countries’ citizens are involved? With what moral authority can the United States keep on issuing "certificates of good democratic conduct" to other countries?
All that is left is to hope that the U.S. public rejects this law at the ballot box and supports Democratic candidates, who can change the composition of this shameful Congress.