Bush Can Now Grab, Imprison ANY US, Citizens He Chooses
Mon Oct 2, 2006 14:30

Published by http://www.rense.com/
Bush Can Now Grab, Imprison ANY US Citizens He Chooses
By Marjorie Cohn
Professor, Thomas Jefferson School of Law

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."

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.



Marjorie Cohn, Professor of Law
J.D., Santa Clara University School of Law
B.A., Stanford University, with departmental honors in Social Thought and Institutions

Professor Cohn lectures throughout the world on international human rights and U.S. foreign policy. A news consultant for CBS News, and a legal analyst for Court TV, she also provides legal and political commentary on BBC, CNN, MSNBC, Fox News, NPR and Pacifica Radio. Co-author of the book Cameras in the Courtroom: Television and the Pursuit of Justice, Professor Cohn has published numerous articles in such journals as Fordham Law Review, Hastings Law Journal and Virginia Journal of International Law, as well as The National Law Journal, Christian Science Monitor and Chicago Tribune. Professor Cohn writes columns for Los Angeles Daily Journal and San Francisco Daily Journal, and she is a contributing editor to Jurist and Guild Practitioner. She has been a criminal defense attorney at the trial and appellate levels for many years, and was staff counsel to the California Agricultural Labor Relations Board. Professor Cohn is president-elect of the National Lawyers Guild, co-chair of the Guild’s international committee, and the U.S. representative to the executive committee of the American Association of Jurists. The recipient of the San Diego County Bar Association’s 2005 Service to Legal Education Award, and the San Diego Daily Transcript's Top Attorneys 2006 award, she sits on the Advisory Board for the Haywood Burns Memorial Fellowships for Social and Economic Justice, and serves on the Roster of Experts at the Institute for Public Accuracy. Professor Cohn was a legal observer in Iran on behalf of the International Association of Democratic Lawyers, and she has participated in delegations to Cuba, China and Yugoslavia. She lived in Mexico and is fluent in Spanish.

Recent Scholarship
Marjorie Cohn, INTERNAT. J. SEMIOTICS L. (forthcoming 2006) (reviewing MICHAEL MANDEL, HOW AMERICA GETS AWAY WITH MURDER (2004))

Police Interrogation, How the Court Refused to Find That Torture Violates Due Process, in WE D ISSENT (Michael Avery, ed., NYU Press, forthcoming 2006)

The Gonzales Indictment, in IN THE NAME OF DEMOCRACY: AMERICAN WAR CRIMES IN IRAQ AND BEYOND (Brendan Smith, Metropolitan/Holt 2005)

Marjorie Cohn, 62 GUILD PRACTITIONER 162 (2005) (reviewing HOW AMERICA GETS AWAY WITH MURDER (2004))

CAMERAS IN THE COURTROOM: TELEVISION AND THE PURSUIT OF JUSTICE (McFarland, 1998) (with David Dow), reprinted by Rowman & Littlefield (2002) and in Chinese translation by Cite (2002)

Contributing Editor (2000-present), JURIST: LEGAL INTELLIGENCE FOR AN EDUCATED DEMOCRACY (published online, http://jurist.law.pitt.edu/forum)

Contributing Editor (2004-2005), TRUTHOUT (published online, http://www.truthout.org)

Editor (1994-2004), GUILD PRACTITIONER (National Lawyers Guild)

Editorial Board (1991-present), GUILD PRACTITIONER (National Lawyers Guild)
U.S. Coup D’Etat in Haiti, 61 GUILD PRACTITIONER 129 (2004)

United States Violation of International Law in Yugoslavia, Afghanistan, and Iraq, in CHALLENGES OF MULTI-LEVEL CONSTITUTIONALISM 233 (Joakim Nergelius, Pasquale Policastro & Kenji Urata, eds., Polpress, 2004)

Resisting Equality: Why the United States Refuses to Ratify the Women's Convention, 26 T. JEFFERSON L. REV. 15 (2004)

Close the Concentration Camp at Guantanamo, 76 COVERT ACTION QUARTERLY (2004)

Oil: Weapon of Mass Destruction, 11 BRIDGES: AN INTERDISCIPLINARY J. THEOLOGY, PHIL., HIST. & SCIENCE 1 (2004)

On Terrorism and National Liberation Struggles, 11 INT'L ISLAMIC UNIV. MALAYSIA L.J. 297 (2004)
Human Rights: Casualty of the War on Terror, 25 T. JEFFERSON L. REV. 317 (2004)

The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001, 71 FORDHAM L. REV. 1233 (2003)

The Myth of Humanitarian Intervention in Kosovo, IN LESSONS OF KOSOVO: THE DANGERS OF HUMANITARIAN INTERVENTION 121 (Aleksandar Jokic, ed., Broadview, 2003)

Saving the World From the Scourge of Unilateralism, 60 GUILD PRACTITIONER 194 (2003)

Affirmative Action and the Equality Principle in Human Rights Treaties: United States’ Violation of Its International Obligations, 43 VA. J. INT’L. L. 249 (2002)

Understanding, Responding to, and Preventing Terrorism, 24 ARAB STUDIES Q. 25 (2002)

NATO Bombing of Kosovo: Humanitarian Intervention or Crime Against Humanity?, 15 INT’L. J. FOR SEMIOTICS OF L. 79 (2002)

Bombing of Afghanistan Is Illegal and Must Be Stopped, INT’L REV. CONTEMPORARY L. 51 (special ed. 2002, Military Intervention in Afghanistan, The War on Terrorism: Violations of International Law)


Criminal Law: Substantive Criminal Law and Criminal Procedure, in ENCYCLOPEDIA OF LIFE SUPPORT SYSTEMS, SOCIAL SCIENCES AND HUMANITIES: LAW, (UNESCO-Eolss, 2002) (published online at http://www.eolss.net) (co-authored with Steven Semeraro & Ruth B. Philips)

The World Trade Organization: Elevating Property Interests Above Human Rights, 29 GA. J. INT’L & COMP. L. 427 (2001)

Open-And-Shut: Senate Impeachment Deliberations Must Be Public, 51 HASTINGS L.J. 365 (2000)

The WTO: A New World Government Dedicated to the Principle That Property Interests Are More Sacred Than Human Rights, 57 GUILD PRACTITIONER 134 (2000)

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