Congress Set To Authorize "Disappearing" People

By Mimikatz

By now the Senate may have passed the detainee bill.  Most of the focus of the bill has been on interrogation techniques, but the really insidious thing is that Congress is poised to give the President to power to "disappear" people, the hallmark of the most heinous regimes of the recent past.  We have now come full circle, because the first post I ever wrote for The Next Hurrah, a little over a year ago,  was on  bearing witness and the Mothers of the Plaza de Mayo in Argentina. 

How is this so?  As both the NY Times and Glenn Greenwald point out, the ability of the President to define anyone, including US citizens who have not left US soil, as "enemy combatants" on the basis that they had somehow supported terrorists, even if they had not in any way participated in hostilities against the US, coupled with the abolition of habeas corpus for those so detained, creates this result.  Throwing someone in a dungeon with no opportunity for judicial review and no way for anyone to find out what has happened is precisely what is meant by "disappearing" people. 

Greenwald explains:

As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.

This is a terrible, terrible, and unnecesssary precedent.  We didn't need to do this in the Cold War even though the Soviets had the power to annihilate us.  We didn't need to do this in WWII, even though we faced massed armies in the millions on the battlefield, plus navies and bombers.  We need to do this now, when we face a small but determined group of extreme fanatics, only because we are led by power-hungry, delusional people who see this as a way to maintain their hold on power.  But so-called "leaders" who would stampede Congress into passing such an abomination in order to gain an advantage in the mid-term elections surely would not stop at using these measures against their enemies if they faced even greater threats to their powers.  It will start small, against the powerless.  But these provisions will be used, make no mistake about it.  People will disappear in the United States of America, and some of them will be US citizens.  We all need to be extremely vigilant from now on.  One day we too may be called on to bear witness on behalf of the disappeared.

Comments

[Katie Jensen]

This is exactly what the soviet union used to do. Remember the good old days? You were labeled a spy, we would never know if you were or not and you would be thrown into jail...forever. (or until our gov't negotiated you out). We used to think this was horrible behavior and it was often used to support the notion of the evil empire. I am just disgusted. Disgusted.

[MarkC]

I just don't understand the psychology here. The congress is made up of people who have taken civics classes, and, even more, who gain their sense of self-worth from their role in Constitutionally-defined political order. What on earth is compelling them to flagrantly undermine their on role in that order? I know not all of them are ready to go all Jefferson Smith on this bill, but where are the few who are willing to gamble on this becoming their "defining moment"? It just doesn't make sense on so many levels, from the sheer anti-Constutionality of it to the degree of political self-marginalization involved.

[Mimikatz]

Well, the bill hasn't passed yet, but the habeas amendment just failed, 48-51, with every Dem but Ben Nelson voting for it and 4 GOP's voting for as well, including De Wine, since Sherrod Brown had voted against the bill in the House.

Josh Marshall makes much the same point about this stunning augmentation of the president's powers. So much for the party of "limited government." Evidently it is limited only in reference to Congress and the courts, not the executive. This is really terrible.

[Kagro X]

What was the psychology of showing up for daily business in the Politburo? To keep yourself and your family out of the gulags for as long as possible, of course.

Amazingly, it has not yet dawned on the handful of Republicans who have sought to bolster their electoral prospects by calling for Donald Rumsfeld's resignation that have just voted to allow Rumsfeld himself to designate them as enemies on his own say-so.

Even if they don't fear being personally disappeared, surely they couldn't have forgotten how just a few weeks ago they considered him so incompetent that they felt free to make such a call in the first place. Could they?

Of course they could. Because they're not Members of Congress, but of the Politburo. And they know that a quick reversal is their only hope. Maybe literally. After all, with no resort to habeus, what practical recourse will a detainee have? Likely none, save the possibility that the intervention of a high-ranking government official... like, say, a Member of Congress?

Look for a future round of corruption charges to be levelled against Members who intercede on behalf of campaign donors who've lost relatives to the gulags.

[Mimikatz]

I think we are seeing the GOP become what it most feared through its recent history--the avatars of total government. The extremism of Cheney/Rove/Bush has just cowed everyone. It is government by fear. It is transforming our society in ways I thought would never be possible. People really, really need to fight back and support those like Keith Olbermann who are doing it in the media.

[ab initio]

Thanks Mimikatz for voicing in unmistakable and stark terms where we are headed.

With this legislation we have crossed the rubicon from constitutional democracy to a dictatorship. Since US citizens can be "disappeared" on our own home soil with no recourse at the sole whim of the Executive, lets call it what it is - we are officially in a dictatorship.

All those legislators who aided and abetted this "democratic" transition to dictatorship MUST be held accountable. Even if the Dems win a majority in Nov in both the House & Senate this legislation will not be overturned at least for another 2 years. The only opportunity then becomes electing a Dem President who supports the Constitution and American values in 2008 and the Dems having a majority in both Houses. But with dictatorial powers any political opponent can be disappeared and the dictators will have unfettered ability to run their propaganda in collusion with the corporate media who will receive financial gain.

We now need the courage of the "mothers of the disappeared"!!

[Mimikatz]

My mistake above. Sherrod Brown voted for the bill, as did Harold Ford. All three of the CT Repubs voted for it. In all 38 Dems voted for it, most of them facing serious challenges, although in truth no Dems are rated at this point as being in toss-up races.

[jonnybutter]

a quick reversal is their only hope.

That may be all of our only hope.

[demtom]

The obvious answer to the question "How can this happen?" is, most of the GOP likes it, and just enough in the Democratic party are afraid to vote against it -- apparently they're still saying "remember what happened to Max Cleland" to one another. Obviously many of us sneer at this latter feeling, but, you know, alot of Democrats stood up and voted for the Brady Bill and assault weapons ban -- measures broadly favored by most Americans at the time -- and lost their seats because of the determination of the opposition. It's easy for us to say They should risk their jobs for principle, because most of us aren't often faced with that choice. And just suppose it's the difference between Dems taking Congres 40 days from now or not. A Hobson's choice, I know, but...

Which isn't to say I don't loathe this outcome, or that I'm not sitting here hoping for a last-minute decision to filibuster. But, as Chris Rock says in one memorable routine, I understand.

[rj]

Thanks for this post, Mimikatz. For all that we saw this coming, I'm still stunned today that it's actually happening. Kagro X, your Politburo label is of course spot on; I've been calling them Bolsheviks for awhile now, and in their actions they've resembled nothing so much as the Supreme Soviet. With apparently much the same aims, and, increasingly, the same results.

Yes, demtom, in the cold light of day I've been redirecting my fury (if not my despair) back where it most belongs, to the people actually responsible for doing this to our country. I still think we lost valuable "framing" (sorry) time; and to the extent that I do believe that "all that's required for evil to triumph is for good men to do nothing" I have to lay some blame at my party. But this event just makes that much clearer how important it is to defeat these people. We've got to find ways to both push and protect those on our side. And, as Mimikatz says, to be vigilant.

(And jonnybutter, that's quite a link you've got there...)

[Katie Jensen]

I do understand but again it makes my point that the very first things that the dems need to solve is the very idea that we are wimps or "pussies" because we fight for our constitution. This must be dealt with in a valid, strong and direct way. We cannot get there as long as our fear of being called "weak" leads our behavior. That means we are voting and acting out of fear. How can you possibly convince the electorate that you are not a pussy if your behavior is clearly directed by your fear??? It cannot be done. NO. The dems must be willing to take the path less traveled. They must be willing to turn this notion around at the cost of their jobs. They must be willing to lead with faith instead of fear. I am sorry, I just cannot see a way around this discussion. We should have been willing to go to the mat over torture. We needed to do so and we needed to show NO FEAR.

No different that the folks who ran the underground railroad. Sometimes doing the right thing requires a sacrifice.

[rj]

And Katie's right, of course; the way to prove you're strong is to be strong. We need to find a way to flatten the Dems' learning curve on this.

[Mimikatz]

As I understand it, the Senate Dems are offering some interesting amendments. Kennedy has one that defines several practices as "torture" if done to our people anroad. Get the Repubs to vote against this and give them a taste of theire own medicine if they vote against. The idea is to highlight the hypocrisy and create a bill that is different enough from the House bill that it has to go to conference and revote.

Many Senate Dems are standing up, but it is probably too late.

[rj]

Wish I thought any of their amendments had a chance of passing; reconciliation probably couldn't happen by tomorrow (though the war-criminal-in-chief might prod them to step on it). But I do hope that the Dems will be able to make good use of what they're setting up here.

[demtom]

Let me add that I'm not entirely certain opposing the bill en masse would be bad for Dems -- but I'm certain THEY think it is. And I've been more optimistic than warranted about the electorate in the past (say, 1994), so I can hardly tell them with confidence to suck it up and vote right, and everything will come out okay.

I agree, the Dems don't seem to understand their image problem comes as much from their posture as from their issue-positioning. As Chris Bowers says over on MyDD, when you make it clear you'd like to vote against the torture bill but you'll vote aye instead because you're afraid of looking "weak", it's hard to see how the voters will see anything but a wuss, negating any "toughness" the vote is supposed to give you.

Katie, I admire your forthrightness, but, right at this moment, I think the GOP retaining control of both Houses after November is as horrific an outcome for the country as I can imagine. A Pickett's Charge opposing this bill, were it to cost us just enough seats to keep us in the minority, would be an unacceptable circumstance to me, no matter how morally justified it would be. You can, with justification, say "When is the time?", and i have no good answer for you. But, as I say, I see both sides.

As far as the framing...everybody's almost 40 years too late on it. This country has been drifting rightward on law-and-order issues ever since the late 60s; for all the talk of what civil rights and Vietnam did to the Roosevelt coalition, the seeming indifference of too many liberals to the burgeoning crime of that era may have done the most to undermine Dem credibility. Many of the civil-liberty stances of that era were nobly undertaken (in response to clear racial injustices in the system), but many middle-class whites (former Dems) saw it as well-to-do elites in safe neighborhoods who didn't care that working class areas were becoming crime-ridden.

This led quickly to the caricatured notion that the ACLU and defense lawyers in general were in a conspiracy to free all criminals. (When people moan about lawyers, they're mostly thinking defense -- Johnnie Cochran, not Ken Starr) Too many people still believe Ed Meese's contention, that defendants wouldn't be accused if they weren't guilty; it's too easy for them to accept that everyone at Gitmo is a proven terrorist (neve mind the many who've been released without charge). It's certainly a perception we NEED to change, but it's not an overnight process -- certainly not one easily reversed in the midst of an election season, with an unhelpful media.

[Mimikatz]

You are right about the "law 'n' order" campaigns of the Nixon Era, although that was also code for keeping Black people in their place. Reagan took us further Right and Bush is the culmination. The Dems were too complacent, but you are also right that we have to start moving from where we are now not where we want to be, and we need the Congress to do that. So don't hold it against the Dems so much that the R's retain power, because an emboldened Bush will be a sight we don't really want to see.

This is one of those situations where "it has to get worse before it gets better" is not the right way to go, because it can get so bad it won't get better in what remains of my lifetime, at least.

[ds]

Mr. Bush should think carefully about this. He is a great a wise leader and will surely judge justly, but all the Presidents who come after him will be lesser people and will not have his great insight into the hearts of men. There's no telling what they might do.

Perhaps it is best not to give such powers to a President.

At all.

Ever.

[Katie Jensen]

But it's like we all buy it. Because we stand up against the death penalty, because we want to follow our constitution, because we want to put principles before personalities, because we want to enter into a war only carefully and with validation from the world does not make us weak. Here's the deal, if someone calls you a fish and you know better all the way to your toes, your feelings aren't hurt and it's obvious they are misinformed. It's about our belief's about ourselves as dems.

This needs to be framed in a proactive way instead of what we are not for. We are FOR following the constitution. We are FOR making sure that people recieve fair trials, we are FOR careful deliberation of war. That's all. We are for certain things not against the republicans. We are believing the bull crap and that is causing the biggest problem?? Am I afraid of war...Yes and I damn well should be. A war is where you murder people to create change. That's what a war is. Is it sometimes necessary??? Yes, but democrats are not being proactive about the message.

I have no desire to give up and go home. I believe in the democratic party, but this issue has to be addressed effectively if we are to be leaders in the world. What is our stand??? It's not against torture. It for Human rights. It's for our constitution. It's not against the war. It's for careful deliberate and transparent decisions when it comes to taking lives. It's not that hard. How about a list of the things we are FOR!! I need to know what I believe in today...more than ever.

[rj]

Yes, Mimikatz and demtom; on the "worse before it gets better" thing, I actually argued that possibility in '04 (theoretically -- I certainly didn't have enough confidence it the theory not to vote for Kerry). But any benefit that Bush's reelection afforded in clarifying exactly what the modern Republican party stands for has already been gained; we literally won't survive two more years of this.

On the framing, I take your larger point, demtom, and you're right; but a strong, confident voice could have been taking advantage of the past 20 months' change in atmosphere to start to pull perceptions back, with conviction, simple language, and some ridicule (a much-underrated weapon), and I'm convinced we'd be in a better position now. It's harder from a standing start; and we've got 40 days...

[ab initio]

On the Republican Civil War thread I wrote this on Sept 10th:

"It would be foolish for the Dems not to have a plan on how to respond and leave it up to McCain/Graham/Warner. We saw that McCain/Graham were quite happy to repeal habeas corpus for Gitmo detainees. They could be persuaded for the "sake of the party" to agree to some "compromise"."

As I suspected the Dems went once again for triangulation - electability over principle. They did not stand up for American values and the Constitution and make the same speeches that they did today two weeks ago and used that to rally all of America on the importance of defeating this abominable bill. They did not fight because they calculated that by not taking a public stand they could weasel out of it and not have to face the barrage of negative ads in the next weeks. They will still be on the receiving end of those negative ads. What they lost however was a historic opportunity to clearly differentiate themselves from the Repubs and demonstrate courage of conviction and show the American people they would stand up for American values and the rights of every American even if it meant electoral loss. They would have won big if they did that, IMO.

When all is said and done, history will not be kind. We have sent a message to the rest of the world today that America is no longer the beacon for Liberty and the Rule of Law. By not forcefully opposing the "Military Commissions" legislation the Dems will be judged by future generations as complicit in legalizing dictatorship in America. Right now its about "disappearing" the Maher Arar's. It wont hit home until Uncle Joe has disappeared in the gulag. Our experiment in constitutional democracy that began in 1776 died today at the hands of our very own elected representatives. Thomas Jefferson, John Adams, Ben Franklin and all those great souls who gave so much for the birth of this nation weep today. It will be a long, hard road to get it back. Dictators do not give up power that easily!

[Marky]

How could this happen? By design. There's no accident. The Republicans don't plan on giving up power, ever, so they believe they will wield these tools in the future.

[marky]

The mistake is to think there is any discontinuity in the Republican's value judgments. These people APPROVED of the "disappearing" of Argentinians, they APPROVED of El Salvador death squads and deposing Allende in Chile, they APPROVED of the massacre in East Timor.. the list goes on and on. US Republicans are thoroughgoing authoritarians, and have been for decades. They always think that a conservative state needs to have the freedom to use harsh tactics on its enemies.

There never was a good Republican party for more than 100 years. . It's values have always been basically fascist----corporatist at best.

[Daniel DiRito]

See a tongue-in-cheek visual of the Grand Opening of "Tortureland"...here:

www.thoughttheater.com

[Jodi]

Sounds to me like a Republican President with majority of about 5 million votes and an enlightened congress feels that these procedures are useful in this war that isn't like the wars in the past.

My question is this. If the Democrats win the next Presidential Election, and we are still fighting this war, what do you think should be done? Free all the detanees? Pull out of Iraq, Afghanistan, Africa, and all the other places.

Really? What do all of you people wish to do?

Have the UN take charge? And if they fail, the what? Give up?

[Undeniable Liberal]

This legislation may less about the socalled war on islamonazicommiejihdifacism, and more about keeping the masses under control when the impending revolution occurs.

[Katie Jensen]

Jody that's what they all say about every war. Heck that's the same excuse my kids use to hit each other. I pray that someday as a nation we get back to the maturity that is truly about solutions that are best for the majority instead of a minority. My worst pet peeve is a republican who makes less that 250k. Those poor folks have no idea that voting for a republican is like voting against their best interests. Between the Abramoff scandals, the war profiteering and the fact that the majority of folks dying in this war are middle class it's pretty easy to see that being republican and poor is simply a matter of believing in something that just isn't there. Psst, the emperor is wearing no clothes. Can't you see he's naked??? I can.

[Mimikatz]

Jodi: Read Lawrence Wright's "The Looming Tower" about how the FBI's interrogation methods resulted in much better intelligence than the CIA's torture methods. Suskind says the same in "The One Percent Solution." Virtually every expert says that torture is most effective in humiliating, breaking the will and instilling fear, but not so good at getting usable information. Then there is what it does to its practitioners, who will be back living among us.

So what do I think should be done? Interrogate suspects the old-fashioned way, even though it takes a lot more training and time. Use effective investigative techniques. Move the troops out of Iraq. Concentrate some energy on the Israeli-Palestine issues. With the 2 billion a week we are spending in Iraq, put more resources into Afghanistan, although it may be too late there. Do some intelligent, non-insulting public diplomacy. Ease off our farm subsidies so farmers in developing countries can make more money.

I am not opposed to spies and special forces (or even military force) as such, but their use has to be intelligent, effective, and basically in keeping with our values. Have a "decent respect for the opinions of mankind," as Jefferson put it. We can't remake the world to be like us, nor should we, but we were never this disliked by so many millions, and there are reasons that is so.

[ab initio]

Jodi

Torture like waterboarding was used by the Khmer Rouge and the Soviets to elicit "confessions" not intelligence. I suggest you read Milt Bearden, former CIA and Col. Pat Lang on interrogation tactics that actually produce actionable intelligence.

With the passage of the "Dictatorship" Act yesterday, we have allowed the terrorists to win. OBL won yesterday. The American people and American values and the 230 year experiment in constitutional democracy lost.

When someone you know gets "disappeared" in a gulag at the whim of this President with no recourse - no habeas corpus - and indefinite detention with no charge and waterboarded, you'll understand what we lost yesterday. No one in the world including Americans on US soil are safe from persecution under the bill passed yesterday.

Regarding your specific question of what should be done with the detainees if a Democrat President is elected in 2008. Charge them and have a judicial trial with due process and then convict them. That's what America did with the Nazis and for good reason. If you have no evidence free them. How can you justify indefinitely detaining people who may very well be innocent? Note that recently a Canadian government commission exonerated Maher Arar and the the Head of the Canadian police apologized for causing Maher Arar to be renditioned by the US to Syria where he was tortured for 10 months when he was an innocent man. This is unconscionable. This is not American values. Please also note our courts have tried terrorists and convicted them. The first WTC bombers are in jail right now serving sentences handed down by a court. We are in deep, deep trouble if a small number of jihadists can end our 230 year constitutional system. We should never forget the Preamble to the Declaration of Independence written by Thomas Jefferson. That's who we are. We are not like a crazed jihadist.

[Jodi]

It appears from what some of you have said that you remember what I said about torture in another thread.

First I agree a confession is worthless if elicited by torture or even the threat of torture, and should automatically be tossed.

Second, there are some very useful methods of interrogation that don't apply heat, current, or break the skin, and that most here would say that their consciences are alright with.

Third, yes torture afflicts the applier as well as the person it is applied to.

Fourth it is unfortunate that the Second point doesn't really apply very well when time is of the essence and the stakes are large. And the First point doesn't really apply if you need to find the bomb that is going to go off in two hours, where the victim is entombed, or where the tunnel is dug.

People that are desperate whether on the bad side or on the good side will do what is necessary. This is human nature. This is a basic instinct.

The instinct for self preservation! This trumps the Third point.

But we need to codify some system so that people don't use "necessity" as an excuse when it is not so.