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If a Bill of Rights Falls in the Forest, Does Anybody Hear?

By       (Page 1 of 2 pages)   6 comments
Message Randolph Holhut
DUMMERSTON, Vt. - Last week, the Republican-controlled Congress, aided by a handful of faithless, fearful Democrats, decided it was more important to win an election than to preserve and protect the Constitution, human rights and the rule of law.

And most Americans don't have any idea what happened.

Congress decided to scrap nearly eight centuries of legal precedent in voting for a bill that gives President Bush unimaginably broad powers regarding the detention, interrogation, prosecution and trials of terrorism suspects.

But life in America goes on. The power of self-delusion has kept the realities of the past five years at bay. Most people don't know what's in the Bill of Rights, let alone know that it has been turned into toilet paper by President Bush and his rubber stamp Congress.

While America slept, Congress decided that terrorism suspects will not have the right to challenge their detention in a court of law. This, known as the writ of habeas corpus, was established in the Magna Carta in 1215 and has been the bedrock of the rule of law ever since.

A suspect will also not be able to challenge their treatment while in detention in a court of law. The right to a speedy trial has been eliminated, as has the right of the accused to see the evidence and testimony against him. Coerced evidence is now permissible for use in a trial, if a judge considers that evidence reliable.

This bill not only immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of prisoners, it also allows the president to set the rules for interrogation and determine what constitutes cruel and inhumane treatment and what interrogation tactics it considers permissible. And there is no requirement for the American people to know any this information - it may stay secret indefinitely.

If you think all this only applies to foreign terrorists sitting in cells in Guantanamo Bay, you're wrong. The language in this bill gives the president the power to seize anyone, U.S. citizen or foreign national, who has "purposely and materially supported hostilities against the United States." It codifies the Bush administration's definition of "unlawful enemy combatant," a definition that previously did not exist in any law book.

John Yoo, a University of California-Berkeley law professor who served as deputy assistant attorney general for President Bush, was one of the administration's chief legal theorists. He recently wrote the following words: "We are used to a peacetime system in which Congress enacts the laws, the president enforces them and the courts interpret them. In wartime, the gravity shifts to the executive branch."

What Congress did last week was codify Yoo's twisted version of our government, a twisted version that was established in a memo Yoo wrote on Sept. 25, 2001.

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force such as those created by the September 11 incidents," Yoo wrote in that memo. "Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. Those decisions, under our Constitution, are for the President alone to make."

In other words, the president alone has the power to decide what laws to follow in wartime and neither Congress, the courts, nor anything else should be allowed to interfere.

This is the post-9/11 governing philosophy of President Bush. It is an authoritarian, lawless ideology that violates every established legal precedent. The power to unilaterally decide which laws will be obeyed is something that is claimed by kings or dictators, not leaders of constitutional democracies.

And the Republican-controlled Congress, to its everlasting shame, allowed this to happen.

So if you write a letter to the editor of your local paper criticizing President Bush, if you go to a vigil to protest the war in Iraq, if you send a contribution to a charity or political group that is deemed to be "aiding terrorism," you too could be deemed an "unlawful enemy combatant" and whisked away and jailed without legal recourse.

Sounds improbable? Think something like this can't happen in America? Ask the Japanese Americans who were rounded up and detained in prison camps during World War II, guilty of no crime other than being of Japanese ancestry. Or the thousands of Muslims in this country who were rounded up and detained without charge after the Sept. 11, 2001, attacks.

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Randolph T. Holhut has been a journalist in New England for more than 25 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at
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