Snowe (and Collins) turn their backs on Runnymede


Saturday, June 02, 2007


Dear Senator Snowe:


            thank you for your reply of April 3rd to my telephone requests concerning the denial of Habeas Corpus within the bounds of the Military Commissions Act of 2006, (MCA), sc. the Specter Amendment.  Your answer was thorough and specific and enables me to pursue my logic where a more cursory answer would not.  For that I do thank you.  I regret that my service to my country must be done on my own time, which is limited, elsewise I would have written this sooner.


            You said in your letter:


“As you may know, S.3930, the Military Commissions Act, was signed into law on October 17, 2006, and creates a legal framework for military trials of terrorism suspects, as well as set the code of conduct for detainee interrogations. Senator Arlen Specter had offered an amendment to S. 3930 which would have removed the provisions within this legislation that limit a detainee’s ability to file a writ of habeas corpus for judicial review, or challenge their detention through legal recourse. On September 28, 2006, the Senate rejected this amendment by a vote of 48 to 51.


“Senators voted in opposition to this amendment on the grounds that the right of habeas corpus writs to Federal court is a right that has never before been granted to a combat detainee. On September 28, 2006, the Senate approved S. 3930 by a bipartisan vote of 65 to 34.


“Under the Military Commissions Act, Combat Status Review Tribunals (CSRTs) were created to allow detainees who allege that they are being erroneously imprisoned to have their case reviewed by a panel of military officers. Under this law, CSRT verdicts can be appealed to the U.S. Court of Appeals for the District of Columbia Circuit to ensure that basic legal principles are adhered to during tribunal proceedings. CSRTs have jurisdiction only over unlawful enemy combatants, not Prisoners of War (POWs). POWs are legally entitled to greater protections than unlawful enemy combatants, because the latter are not fighting in accordance with international rules of war or on behalf of signatories to the Geneva Convention. Notably, in the past, habeas corpus rights have not been granted even to POWs, as a military forum has long been viewed more appropriate for adjudicating combat-related trials during wartime. Therefore, these military tribunals—operating pursuant to the rule of law and subject to judicial ­review by a federal appeals court—are the proper forum for determining the status of illegal enemy combatants apprehended in the course of conducting the war on terror.


“You may also be aware that, on February 20, 2007, the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, ruled that not applying habeas corpus rights to unlawful enemy combatants is constitutional because pursuant to Supreme Court precedent, habeas corpus rights do not apply to territories that are not part of the sovereign United States, and that constitutional rights do not apply to aliens who have neither presence nor property in the United States. On April 2, 2007, the Supreme Court denied a petition for certiorari on this case. In other words, by declining to hear the case at this time, the Supreme Court allowed the D.C. Circuit’s decision to stand.


“In your letter, you voiced your support for S.185, the Habeas Corpus Restoration Act, which was introduced by Senator Specter on January 4, 2007. This legislation would repeal the provisions of the Military Commissions Act of 2006 that eliminated the jurisdiction of any court to hear or consider applications for a writ of habeas corpus by those determined by the United States as enemy combatants. Currently, S.185 has been referred to the Senate Judiciary Committee. At this time, no action on this legislation has been scheduled by the Committee, but please be assured that I will keep your views in mind should this legislation come before the full Senate.”



            I find it necessary to point out to you that at no point in this letter is the word “citizen” used.  You neglect to observe that, on one day, a citizen of the United States is entitled to the privilege of the Writ of Habeas Corpus, that precious right absent which no other right is of any value, and on the following day, that citizen is deemed an enemy combatant by the President, or the Secretary of Defense, or their designeé, and ipso facto is no longer eligible for the Writ.  No recourse outside the Pentagon can offer that citizen redress of this act of autocracy.


            This is a quote from the Military Commissions Act of 2006:


‘‘§ 948a. Definitions

‘‘In this chapter:

            ‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means—

            ‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);


            Can we be honest and say that “purposefully and materially supported hostilities against the United Statescould potentially be construed as applying to someone who publicly, and God forbid, effectively¸ challenges the whole concept of the “Global War On Terror” in public protest, given that effective protest changes the flow of monetary and political capital vis-à-vis such a purpose?  Notice that no mention is made of the “person’s” citizenship.  No mention is made of the person acknowledging or disavowing support for this foreign enemy.


            We live in a nation of laws.  The rule of law is the only thing that separates us from dictatorship.  What bright line protects a person, say a United States citizen of the Muslim faith, who innocently sends a contribution to a charity that they innocently deem to be using the money for relief of the victims of Israeli ethnic cleansing2  — relief I say of the oppressed, who is then subsequently accused of “purposefully and materially support[ing] hostilities against the United States”, such a person is fully deprived of their rights as a US citizen, and any hope of recourse, and can then be thrown in a dungeon far away, without notice to their loved ones, without anyone knowing the slightest fact about their whereabouts for an indefinite future?  What guarantee is there that their protestations of innocence will even be heard, let alone speedily, let alone transparently, let alone objectively, by a Military Commission?  Where in this equation is the Rule of Law for this loyal citizen?  Where is the constitutional protection and guarantee that “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.“ (Art. I, § 9, cl. 2.)


An article in Findlaw, The Military Commissions Act of 2006: A Short Primer by Joanne Mariner1 includes the following observations: (emphasis on the word “anyone” is from the author — the rest, mine)


“Under the first prong of the provision, an ‘unlawful enemy combatant’ is defined as a person ‘who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,’ and who is not a lawful combatant. It would cover someone who provided funds to al Qaeda or the Taliban knowing that the funds would be used to fight against the U.S. (including, given the bill’s apparent understanding of terrorism as a form of hostilities, funds that are used for terrorist attacks in the U.S.).


“The material support element of the first prong of the definition - which covers people who have purposefully and materially supported hostilities - exceeds the traditionally-accepted legal definition of combatant. Under international humanitarian law - the laws of war - combatants are people who directly participate in hostilities. People who merely support hostilities - such as cafeteria workers at a military base - are considered civilians. Unlike combatants, they cannot be deliberately targeted for attack.


“The first prong of the bill’s definition is unjustifiably broad. But the second prong of the definition is far worse. It appears to delegate to the President or Secretary of Defense unrestricted power to deem anyone an unlawful enemy combatant. All it requires is that a ‘competent tribunal’ like a Combatant Status Review Tribunal (CSRT) make the determination. (CSRTs are the administrative boards that review detentions at Guantanamo.) The bill itself says nothing about the substance of the criteria that the tribunal should apply.


“The definition as a whole is thus so radically overbroad that one is tempted to attribute its breadth to a drafting error (perhaps it was originally written as a two-part test, not two independent prongs). At any rate, as written, the provision should be struck down as a blatantly unconstitutional delegation of power. And note, in assessing the provision’s scope, that the definition of ‘unlawful enemy combatant’ is not limited to aliens (even though U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions).”


Said simply, a citizen cannot be denied Habeas. J   

But a citizen can be deemed an “unlawful enemy combatant”, and then denied Habeas.  L


            Kind of like the scene in Guys and Dolls where Nick the Greek is on his knees in the Biltmore garage, next to a scrawny little hood, who remarks in horror, “Hey Nick!  Dese dice ain’t got no spots on ‘em!” to which Nick replies, “Dat’s OK — I remember where da spots are.”  Very encouraging.


            As to the imprimatur of the Supreme Court, Breyer, Souter, and Ginsburg dissent from the denial of certiorari, showing how innately political the matter is.  Let me remind you that the Dred Scott decision was 6-3 also.  That does not confer honor upon it, but rather the greater shame, and with it, the greater caution. 


            The power of wealth to determine right and wrong was in evidence on that sad day in 1857.  I might add, obiter dictum, that the City of London banking institution, Brown Shipley, which bought 75% of the slave cotton before the Civil War later became, in its Wall St. incarnation Brown Bros. Harriman, (managing partner Prescott Sheldon Bush) and made millions in Nazi Germany in steel, shipping, gold and money laundering, &c., with the able help of the Dulles brothers as crème de la crème Wall St. attorneys.


            As to the imprimatur 2-1 of the Fourth Circuit, the Washington Post  has said,


“The Richmond-based 4th Circuit has been the administration’s venue of choice for several high-profile terrorism cases. It is widely considered the nation’s most conservative appellate court....”


            Moreover, the majority makes no reference to citizenship.  Even the dissent makes that reference only in the context of trying to extend habeas to actual aliens.  The (majority) Opinion begins:


“Do federal courts have jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba?”


as if that were the only question.


            As the Dissent notes [I. B., p 8],


“This court would have jurisdiction to address the detainees’ claims but for Congress’s enactment of the MCA.”  That amounts to circular logic in the justification, and that, mind you, is addressing merely the rights of actual aliens, not considering the question I raise, sc. my own state, if you will, and that of all citizens, formerly secure, now dangling over the abyss, subject to the whim of a military court, at the bidding of the president or the SECDEF.  What more is lacking for a military coup d’etat, but troops in the street?


Let’s consider the key question: who is in jeopardy of loss of habeas?   The MCA states, under


‘‘§ 950v. Crimes triable by military commissions

            ‘‘(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation

            (26)WRONGFULLY AIDING THE ENEMY.—Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.


According to the Fox News noise machine, the O’Reillys, the Hannitys and the Limbaughs, anyone who advocates abandoning this catastrophic war of choice, against a nation that did us no harm and posed no threat but the imagined ones now entirely discredited, is “knowingly and intentionally aid[ing] an enemy of the United States”.  There are still many in your party, madame, who agree with them.  But the issue is, who will decide?  Who will decide?  Majors, Colonels, Generals, the SECDEF, and the president.


We have already seen that “this chapter” makes no exception for citizens, but states that:


‘‘§ 948a. Definitions

            ‘‘In this chapter:

            ‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means—

            ‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);


As I have already asked, where is the bright line that protects citizens from this calumny?  Please inform me, if you know.


            To clarify the autocracy coefficient of this matter, the MCA states


‘‘§ 948d. Jurisdiction of military commissions

            ‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.—A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.”


            Secret trials, without counsel, without confrontable witnesses, without constitutional protections, equally applicable to citizens and non-citizens alike.  The image of Gennady Yanayev, explaining over Moscow TV that “as vice president, he had assumed the acting presidency of the Soviet Union” comes to mind.


            True patriots cannot rest until this breach of our Republic is repaired.




1.      JOANNE MARINER  A graduate of Yale Law School, she served as a law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit before joining Human Rights Watch in 1994.

2.      which is now well documented by Dr. Ilan Pappe (late of Haifa University, now in exile in London) in his seminal work, The Ethnic Cleansing of Palestine [Oneworld Publications Ltd., 2006], drawn from archives of the Irgun, Haganah, and IDF, as well as personal memoirs of several attendees of the meeting in the Red House in Tel Aviv, where the meeting took place on March 10th, 1948, chaired by David Ben Gurion, wherein the ethnic cleansing, a war crime by any modern standard, was carefully planned, and was of course, effectively executed during the following 7 months — half the indigenous population of Palestine was driven out or killed.