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Saturday, 30 September 2006 13:26

Elliot D. Cohen: Bush's Chilling New Definition of "Unlawful Enemy Combatant"

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by Elliot D. Cohen, Ph. D.

George W. Bush has repeatedly warned, "Either you're with us or you stand with the terrorists." Now he has gotten through legislation that allows him to back it up. On Thursday, September 28, 2006, in a hastily drawn decision that will likely live in infamy, the Senate nodded assent to the Military Commissions Act (PDF).

According to this Act, an "unlawful enemy combatant" is to be defined as:

"an individual engaged in hostilities against the United States who is not a lawful enemy combatant."

This basically means that if a person is not a soldier in the service of a foreign government, but is nevertheless engaging in "hostilities" against the United States, then this person is an unlawful enemy combatant. Notice that this definition does not require that such a person be an "alien," which accordingly leaves open the possibility that this designation could also be applied to an American citizen.

This definition as contained in the approved version of the Act, is substantially broader than that included in an earlier version (PDF), according to which a person so designated must also be

(A) part of or affiliated with a force or organization-including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces-engaged in hostilities against the United States or its co-belligerents in violation of the law of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.

According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? What about an American journalist who publishes leaked information damaging to the Bush administration? What about an anti-Bush blogger? In short, the definition is broad (and vague) enough to include any American citizen who is acting in a way the President deems "hostile" to the United States. As such, it is difficult to imagine a single piece of legislation with greater potential to undermine freedom and democracy in America.

In chapter 948c ("Persons Subject to Military Commissions"), the Act does stipulate that "any alien unlawful enemy combatant engaged in hostilities against the United States or having supported hostilities against the United States is subject to trial by military commission..." (my italics). However, any student of elementary logic knows that, from "All A are "B" it does not follow that All non-A are non-B." In other words, this does not mean that someone who is determined by the President or the Secretary of Defense to be an "unlawful enemy combatant," but who also happens to be an American citizen is therefore automatically off the hook.

The Act also suspends the constitutional protection of habeas corpus, which means that those branded as unlawful enemy combatants can be incarcerated indefinitely without even being charged. And, if the person so branded happens to be an "alien" (say, a Canada citizen) he can no longer use the Geneva Conventions in his defense because "no alien enemy unlawful combatant subject to trial by military commission... may invoke the Geneva Conventions as a source of rights at his trial by military commission."

As for who interprets the meaning and application of Article 3 of the Geneva Conventions, concerning whether or not a prisoner has been tortured, "the President has the authority for the United States to determine the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violation of treaty regulations which are not grave breaches of the Geneva Conventions."

While a list of "grave breaches" is provided in the legislation, the bill enjoins that no foreign or international law shall be used by any U.S. court of law to interpret these breaches. This means that it is up to the President to decide whether or not someone is guilty of torture or other cruel and inhumane violations of the Geneva Conventions. This in turn means that George W. Bush now has the authority to decide whether he himself is guilty of having tortured anyone. And, of course, the provisions of this Act regarding torture have been conveniently made retroactive and take effect as of November 26, 1997.

The Act also makes clear that the President's power to establish military tribunals does not "alter or limit" his authority "to establish military commissions for areas declared to be under martial law..." Now, a presidential declaration of a state of martial law in America might well be the last thing any American would care to envision. Nevertheless, checking the awesome power of government cannot safely be left to chance or the goodness of those who govern. This is why our founding fathers established a system of checks and balances. Unfortunately, with the passage of the 2006 Military Commissions Act, our nation has moved considerably closer to dissolving legal protections that have helped sustain our democracy in the past.

Unfortunately, this conclusion does not appear to resonate with lawmakers who have supported the Act. For example, according to Representative Duncan Hunter, Republican of California and chairman of the Armed Services Committee, "We are dealing with the enemy in war, not defendants in our criminal justice system...In time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops."

However, the war to which this Act applies is not a "war" at all in the conventional sense. The "enemy" is now defined as anyone who is "hostile" to the United States. This is an "enemy" that is not attached to a state government and is not necessarily attached to an organized terrorist group. This "war" knows neither geographical nor temporal boundaries. It is a "war" without end, where "victory" is an empty concept. Empty metaphors have taken over the job of criminal court proceedings and due process, and have instead been misguidedly placed in the hands of a powerful federal government. Ironically, in the ongoing, gradual process of tearing down our internal system of checks and balances, we face a much more ominous and identifiable threat, one that has just, with the passage of this Act, become even more ominous.


Elliot D. Cohen is a media ethicist and author of many books and articles on the media and other areas of applied ethics. He is the 2006 first-place recipient of the Project Censored Award for his Buzzflash article, Web of Deceit: How Internet Freedom Got the Federal Ax, and Why Corporate News Censored the Story.