I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, October 18, 2006

What Fox viewers are told about the torture and detention bill

(updated below)

The so-called Military Commissions Act of 2006 (.pdf), signed into law yesterday by President Bush, is replete with radical provisions, but the most dangerous and disturbing is that it vests in the President the power to detain people forever by declaring them an "unlawful enemy combatant," and they then have no ability to contest the validity of their detention in any tribunal. The President now possesses a defining authoritarian power -- to detain and imprison people for life based solely on his say-so, while denying the detainee any opportunity to prove his innocence.

But for those who rely on Fox News for their information about what the government is doing, not only do they not know that, they think the opposite is true. This is what Mort Kondracke said yesterday about the Military Commissions Act, while he sat next to Fox News anchor Brit Hume and Fred Barnes, neither of whom contested what he said:

MORT KONDRACKE: Well, as to that human rights watch spokesperson, it's just false that this is — you can lock them up and throw away the key is not correct. I mean, these detainees have a right to go to a military — they have been tried in a military tribunal. The case goes on appeal to the U.S. district — the Circuit Court of appeals for the District of Columbia, second highest court in the land, which reviews the evidence. And so there is judicial review of a conviction, at least, and so, you know, it's just flatly false.

What is "flatly false" is what Kondracke told Fox viewers about the Military Commissions Act. It is true that the Act creates military commissions and establishes rules for those commissions in the event that the President wants a certain detainee tried, convicted and punished (almost certainly execution). Not even the Bush-led U.S. will openly execute detainees without a finding that they are guilty of terrorism. The commissions exist so that the Executive branch can impose sentence (such as the death sentence) on detainees who are found guilty of engaging in terrorism (or some other war crime).

But there is no right for detainees to be tried before a commission, and there is no obligation for the President to bring any detainee before a military commission. If the President does not want to obtain a finding of guilt and impose punishment, he has no reason to bring them before a military commission. He can just keep them detained forever without any finding of guilt and without any punishment being imposed (just as many of the Guantanamo detainees, and even U.S. citizens, have been kept in cages for years with no finding of any kind of guilt).

The Act even allows U.S. citizens to be subjected to this treatment (though the Supreme Court's decision in Hamdi likely requires for U.S. citizens some opportunity to challenge the detention) because even American citizens can be declared to be "unlawful enemy combatants" under the statute (see Sec. 3(a)(1)(1)). All anyone has to do is read the Act and it is immediately and undeniably apparent that it does not provide the right to be tried that Kondrake told the Fox audience it provides.

I frequently encounter sentiments along the lines of: "how can any Americans, even Bush supporters, think that it's acceptable for the President to have the power to imprison people for life with no process of any kind?" A significant reason why things of this sort do not provoke more protest is because large segments of the Bush supporting public rely on the likes of Mort Kondracke and Fox News to tell them what is going on with their government, and the reports they receive are often extremely incomplete, misleading, or -- as in this case -- outright false, propagandistic defenses of the Bush administration. They simply don't know what the Bush administration is doing because the individuals on whom they rely -- including those, like Brit Hume, who hold themselves out as objective journalists -- are themselves ignorant or actively mislead them.

This is not some obscure mistake on Mort Kondracke's part. As he himself pointed out, the power to detain people indefinitely with no process is one of the principal objections made by opponents of the bill. How can he -- along with Brit Hume and Fred Barnes -- not know that the bill provides the President precisely that power? Yet Kondrake told the Fox audience that the bill gives the President no such power, while Hume and Barnes sat there and never corrected it (I don't know if some pseudo-"balance" person like Mara Liasson was there or not). That our so-called "journalists," even on Fox, are looking into the camera and giving such emphatic, false assurances to millions of Americans about one of the most critical issues of our time explains a lot about our current political predicament.

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Next Monday, October 23, The Center for American Progress is hosting an event in Washington called "Perspectives on Presidential Power from Inside and Outside the Beltway." The panelists will be myself and former Clinton advisor Sidney Blumethal, and it will be moderated by CAP Senior Fellow Mark Agrast. It is free and open to the public.

Lunch begins at 12:00 p.m. and the panel discussion goes from 12:30-2:00 p.m. Most of the discussion will be interactive with those who attend, so if you are in or near D.C. and can attend, it should interesting. It is being held at CAP -- 1333 H St. NW, Washington, DC 20005.

UPDATE: Nobody in comments is disputing that Mort Kondracke was clearly and unquestionably wrong in claiming that the Act gives detainees the right to a military tribunal. That is simply not in reasonable dispute. The President has the power under the Act to detain all detainees indefinitely (other than, arguably, U.S. citizens) without providing any access to any court, tribunal or commission. What Kondracke so emphatically told Fox viewers about the Act was wrong. Exactly the objection which he said was "flatly false" is, in fact, entirely true.

But there is some dispute over the scope of the powers vested in the President with regard to U.S. citizens. Some say that the Act does not clearly expand the President's detention powers with regard to U.S. citizens and others claim it does. I believe it does, for reasons I set forth in this comment (the entire discussion in the comment section on this issue is excellent -- with many knowledgeable people participating -- and should be read by anyone interested in the issue).

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