From: jurist.law.pitt.edu 9/25/06

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the overall theme of the “compromise” military commissions bill seems to be the highly-problematic creation of a unique legal regime for a specific group of human beings intentionally cut off from all other domestic and international legal processes…

In this essay I offer an annotated review of the compromise version [PDF] of the Military Commissions Act of 2006 released late last week. My focus, however, is not on the sections that have so far been the subject of great discussion (classified information, common article 3, habeas corpus, offenses, etc.) but rather on what the compromise drafters are trying to do overall.

It appears that what is going on here is broader than what I have seen described. The compromise drafters appear to be decoupling these military commissions from international law, from domestic courts-martial, from other types of traditional military commissions, from any other law. These alien unlawful enemy combatants, these human beings, are in fact being decoupled from “all the laws but one,” in the words of President Lincoln. The power of this effort should not be underestimated because as the lone superpower, the act does no less than push out to the world a state practice that would bring us back to pre-Geneva Convention standards for these people, worthy of only “special process”.

From this view, these individuals have committed such heinous crimes that their process and punishment should be in a carefully controlled hermetically sealed environment that should not contaminate any other procedures that might impact more “deserving” characters. In the 18 sections below I examine the provisions that struck me that – taken as a whole – give us the outline (if we wish to look) of this “special process”. We must remember that this special process is being created using all the ordinary words we have seen before. That is in one sense the genius of this effort. By carefully pulling together points strewn in many places including Hamdan v. Rumsfeld, words that are familiar are able to create a unfamiliar “special process”.

For this special process, this group of human beings is segregated from the rest of mankind. They are segregated and by that segregation they are declared a different type of human being. Based on the responses of Republicans and Democrats, the American Congress, the President and by extension all the American people are willing to have these people declared as different. Moreover, the United States Government is willing to have these rules applied to aliens and in that sense is making a statement to all countries who might seek to invoke diplomatic protection for these non-Americans. Those countries must now consider (“are you with us or against us?”) whether their countrymen are truly a different type of human being such that they will acquiesce in the American determination of segregation.

This, I would suggest, is the essence of the decision that is going to be made this week by this Congress on this legislation. Is America going to declare certain human beings beyond “all the laws but one” depriving them of common levels of human dignity? This type of separation resonates in American history at many points – in the Constitution in its treatment of slaves, in the reservations for Native Americans, in the exclusion of Asians, in the status of women. It resonates in other countries’ histories also, such as in the Black Codes in France, the treatment of Algerians by the French and the laws for the overseas territories, the time of apartheid in South Africa, and the Nuremberg Laws in Nazi Germany. These are only some examples and others can think of more ancient historical references (such as who was a citizen of Athens in the days of its empire).

It points a question mark at the Universal Declaration of Human Rights and the rest of the International Bill of Rights. We are asked to think that this might only be for the current “difficulties” but the legislation does not have any sunset provision. A permanent track is created and any Congressperson or Senator who might seek to amend it in the future is likely to be immediately excoriated for being “soft on terror”. Much power is centered in the President and the unitary executive in the implementation of the process with extremely limited judicial review.

This is what bothers me greatly. For on every occasion I can remember where this kind of special process occurs there is a person who stands up in front of the all powerful in that process and asserts his human dignity. A person like David Wainapel, the late husband of a late friend who challenged a Nazi camp commander in the center of his concentration camp. David Wainapel was considered by that special process as a non-human, but David asserted his humanity. I suspect that these alien unlawful enemy combatants and their lawyers will assert their humanity in front of this special process and the question will be whether we are capable of seeing that humanity (which is to see the evil of which we are each capable for those of them who are guilty) and whether we deny what we are capable of by denying their humanity. And by that denial, I fear we produce an abomination in our lust to end the presence of these persons. In a sense, their victory will have been complete in having us put such effort in creating such a special process for them. We give them their status by our treatment of them – the strangest aspect of all this.

Something deep in the American soul was stirred by the 9/11 events. Something that reminds me personally of what one sees in the eyes of lynch mobs in the old pictures. Except, now those standing are not exclusively white but are a rainbow coalition to ban certain aliens from the benefits of human dignity. There is a coldness to the hate. There is a precision to the process of destroying these persons. There is a determination and an exquisite intelligence with which this is done – through processes that are oh so democratic.

Those pushing this special process have so much power to sway us. All politicians are afraid if they stand against this that millions of dollars will come raining down on them from “the other side” (Republican or Democrat) for being “soft on terror”. Persons of great stature have bought into this compromise (McCain et al) giving psychic cover for those to vote for this language. The rest of the world could make an outcry but one feels that the efforts so far are perfunctory – half-hearted – maybe because the rest of the world wants this special process to develop that they can apply to their special group.

It might be possible for some lone Senator or some lone Congressperson to stand up and say “This is too much for mankind. We have fought too long to not create these kinds of special processes.” We await that champion of human dignity in all its frailness. My fear is that there is no one.

Full article including links to various documents: Jurist