Is your daughter a future detainee? What the media didn't tell you about the new anti-terror bill or Bush's power grab

Media Matters
Oct. 01, 2006

The Senate just passed by a vote of 65-34 a bill that, among other things, allows the president to imprison forever, without trial, your neighbor's son -- a lawful permanent resident in the United States -- for emailing his Muslim roommate who went home to visit his family. Your daughter who organizes a protest at the Pentagon that gets a little more attention than the president thinks it should could become a detainee, held indefinitely. The bill says generally what activities qualify one as an "unlawful enemy combatant" subject to detention, but if the government can postpone that review indefinitely, who's going to tell the president that detention is illegal?

Think we're exaggerating? Think the bill goes after only terrorists or people who support them? Think again. The president is expected to sign it imminently. If you just read news reports, you won't have any idea how far this bill goes. Read it. Yes, it's too late to do anything, aside from letting your representatives know what they have done. They and the media have failed you. Read it.

But don't stop there. President Bush certainly hasn't. The bill's suspension of access to habeas corpus explicitly applies only to "aliens," which it defines as non-citizens -- in other words, legal permanent residents of the United States -- but the Bush administration has taken the position that it can detain anyone -- anyone, U.S. citizens included -- by, in its sole discretion, labeling that person an enemy combatant. Bush did that in the case of citizen Jose Padilla, simply asserting that he was a terrorist, and locking him up in a Navy prison in South Carolina for three years without charges. Padilla filed suit, and the Bush administration argued successfully to the U.S. Court of Appeals for the Fourth Circuit that it could hold Padilla indefinitely as an enemy combatant. It was only following Padilla's appeal to the Supreme Court that the administration filed criminal charges against him, apparently fearful that the Supreme Court would rule in Padilla's favor. The Supreme Court refused to hear Padilla's case, writing that the criminal charges made it unnecessary at the time to rule on the issue of whether he was lawfully detained as an enemy combatant. Let's review: Padilla was held without charges for three years; the Bush administration took the position -- and continues to take the position -- that his detention was lawful and that it has the power to hold him until the conclusion of the war on terror. Rather than reining in the president, Congress has opted to make that unfettered authority clear only with respect to "aliens." The bill does include a definition of unlawful enemy combatants but, notably, does not limit the category to noncitizens. Congress has yet to act on Bush's assertion of power to detain U.S. citizens as unlawful enemy combatants.

The media have characterized the bill as one providing "Broad New Rules to Try Detainees" or, in the words of The Washington Post, a bill that institutes "landmark changes to the nation's system of interrogating and prosecuting terrorism suspects." Indeed, much of the media's focus on this legislation has been directed at the rift -- since healed -- between Sens. John McCain (R-AZ), Lindsey Graham (R-SC), and John Warner (R-VA) on the one hand and President Bush and his congressional supporters on the other over such -- obviously important -- issues as the treatment of detainees. But to read these reports, you would think the bill targets only "them" (as in "us versus them") -- terrorism suspects only a mother or the ACLU could love.

In fact, the bill is explicitly designed to deal with "them," but its effect is to cast a far wider net. You may be like many Americans who have a general unease about compromising the Bill of Rights, but think some give is necessary in the case of purported monsters like Khalid Shaikh Mohammed. If that's your understanding of what this bill does, you have been ill-served by the media. This is a bill that compromises the rights of all of us -- the KSMs of the world, but also those who the President Bush decides are a threat to this country -- or even to his agenda to privatize Social Security. And, you might not know it from such eminent media outlets as the The New York Times and The Washington Post, but not even Bush supporters are safe -- those who might meet with this administration's approval, but still fall victim to this bill if they pose a threat to a future administration that might have a lower respect than President Bush for the democratic principles that distinguish this nation.

How is this possible? Here's what the bill says: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

In other words, under this bill, the president or his designee can simply decide that someone poses a threat, call them an unlawful enemy combatant, and lock them away. Yes, they are entitled to a determination by the Combatant Status Review Tribunal of whether they in fact meet the definition of unlawful enemy combatant. But the law doesn't impose a time limit. The government could simply postpone that hearing indefinitely, and the detainee would have the status of "awaiting such determination," and not be given access to federal court.

Yale law professor Jack Balkin:

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.

Sen. Patrick Leahy (D-VT):

[T]he bill has been amended to eliminate habeas corpus review even for persons inside the United States, and even for persons who have not been determined to be enemy combatants. It has moved from detention of those who are captured having taken up arms against the United States on a battlefield to millions of law-abiding Americans that the Government might suspect of sympathies for Muslim causes and who knows what else -- without any avenue for effective review.


The proponents of this bill talk about sending messages. What message does it send to the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes? Its message is that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants - a term that the bill now defines in a tortured and unprecedentedly broad manner. And that power and any errors cannot be reviewed or corrected by a court. What message does that send about abuse of power? What message does that send to the world about America's freedoms?

Sen. Hillary Rodham Clinton (D-NY):

This bill would not only deny detainees habeas corpus rights -- a process that would allow them to challenge the very validity of their confinement -- it would also deny these rights to lawful immigrants living in the United States. If enacted, this law would give license to this Administration to pick people up off the streets of the United States and hold them indefinitely without charges and without legal recourse.

In its front-page article about the Senate approval of the bill, The New York Times noted that the bill "would strip detainees of a habeas corpus right to challenge their detentions in court." The Times reported that senators from both sides of the aisle objected to the bill's revocation of habeas corpus rights for detainees, and noted that the bill extended to noncitizens living here legally. But the paper barely mentioned the broader implications.

Even so, the Times' September 29 coverage was somewhat better than its coverage the day before, when readers still might have actually weighed in with their senators. On September 28, Kate Zernike and Carl Hulse wrote:

But Democrats said the legislation would reverse fundamental American values by allowing seizure of evidence in this country without a search warrant, allowing evidence obtained through cruel and inhuman treatment, and denying relief or appeal to people like Maher Arar, whom the United States sent to Syria for interrogation that included torture even after the Canadian government told American officials he was not a terrorist.

"This is un-American, this is unconstitutional, this is contrary to American interests, this is not what a great and good and powerful nation should be doing," said Senator Patrick J. Leahy, Democrat of Vermont.

Zernike and Hulse noted that Sen. Arlen Specter (R-PA) offered an amendment to strike the habeas provision, but described it misleadingly as affecting only "terror suspects." Again, it's not just "terror suspects" who can be denied the habeas right under the bill -- it is also those the president chooses to detain for whatever reason.

In a September 28 article, The Washington Post was similarly uninformative about who precisely was being denied habeas corpus review in court under the bill. Staff writer Charles Babington wrote: "Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention." Not exactly. Some of the "fiercest debates" focused on whether the president should have the authority to indefinitely detain legal U.S. residents -- a category that the word "foreign" does not begin to capture -- who are determined to be a threat under any criteria the Bush administration wants to impose -- a far broader category than "terrorism suspects." On September 29, Babington and Jonathan Weisman gave more information, noting that "Specter and his allies said the habeas corpus right must apply to all persons -- including noncitizens -- held in U.S. custody." But they did not note that the bill would deny habeas rights not just to noncitizens held in U.S. custody, but those who had actually been living lawfully in the United States. Nor did they note that the president himself has asserted that the habeas corpus right does not apply "to all persons," not even to all citizens.

Even an "analysis" by Post staff writer R. Jeffrey Smith, while including quotes from several legal experts denouncing the bill, does not lay out the full potential impact of the bill on legal residents of the United States of America. We certainly don't seek to trivialize the lofty denunciations of the bill as a blight on our democracy -- as a shameful departure from the best traditions of the world's shining city on a hill. But we also recognize that those might ring hollow or abstract against the horrific memories of September 11. So for those not persuaded by the moral or ethical arguments against the bill, consider this: your neighbors, your co-workers, you might one day fall victim to it, if the Supreme Court does not strike it down. The Times and the Post touch on the moral outrage generated by the bill; what they fall short on is the tangible harm it inflicts.

Cable News Confidential author Jeff Cohen: another who gives a damn

On the eve of the 10th anniversary of the launch of the Fox News Channel, Fairness and Accuracy in Reporting (FAIR) founder Jeff Cohen's new book, Cable News Confidential: My Misadventures in Corporate Media (PoliPoint Press), describes the Foxification of cable news. Cohen's career includes stints as a weekly panelist on Fox News, a daily commentator on MSNBC, and senior producer of that network's Donahue until the show was canceled on the eve of the Iraq war.

Last week, we described MSNBC Countdown host Keith Olbermann as seemingly alone in giving a damn about serious issues like the Bush administration's affinity for torture; Olbermann is the rare cable news host who is willing to speak truth to power. Cohen's book provides a cautionary tale about MSNBC's handling of Phil Donahue's show for the channel; Cohen describes MSNBC executives as forcing Donahue to soften his questioning of guests and to slant his show rightward:

In November 2002, management essentially seized control of Donahue in a quiet coup. What happened during the last months of the show can't be blamed on its dedicated staff or on Phil.


The overriding directive was to slant the show rightward. In essence, the plan was to imitate Fox News -- and, as time went on, to try to outfox Fox.


A nagging irritation to management from the start of Donahue was that Phil's questioning of authority figures was deemed "too angry." He didn't show due deference in one-on-one interviews. The complaint was that Phil "badgered" powerful guests when he didn't accept their answers or evasions. The reality is that while Phil could pose hard questions, he was almost always polite and good-natured - not rude or disrespectful like other cable news hosts.

Clearly, Phil was unintimidated by the powerful. He could be tenacious with those he called "laptop bombers" pushing for war in Iraq: Where's the evidence? Why the rush? Where's the media? Where's Congress? Whether questioning officials or elite journalists, he was holding those in power accountable -- which is what journalism is supposed to do.

If Cohen's description of management concerns that Donahue seemed "too angry," it's because, four years later, there still exists a significant universe of media elites who consider the passion of Bush administration critics to be more troubling than the administration's countless misdeeds. As we explained last week, Washington Post columnist David Broder exemplifies this attitude:

While concluding that President Bush "has proved to be lawless and reckless" and "started a war he cannot finish, drove the government into debt and repeatedly defied the Constitution," Broder explains why Bush was preferable to Al Gore and John Kerry: Their "know-it-all arrogance rankled Midwesterners such as myself."

Fortunately, in Broder's world, there are people of honor and principle and civility to save us from the nasty bloggers and "know-it-all" Democrats: people like John McCain, Joe Lieberman, Mike DeWine, John Warner, and Lindsey Graham. "These are not ordinary men," Broder tells us, putting his faith in them to stop the president from continuing behaving like a tyrant.

But these same extraordinary men have failed to do so -- again and again. These same extraordinary men have been leaders in Congress at a time when Congress has utterly abdicated its role in government, allowing the administration to be "lawless and reckless" in the first place. These same extraordinary men have stood idly by while the president used "signing statements" to signal his intention to ignore the rare law that they passed without his complete enthusiasm.


Broder continues to put his faith in a showman like McCain, perhaps because he is unable to stand with those darn "know-it-all[s]" on the left -- or perhaps because Democrats, too, stood by and let McCain lead the "fight."

And -- surprise -- it ended with McCain caving and declaring victory while the White House began laying the groundwork to ignore any concessions it pretended to make to McCain.

We can hardly wait for David Broder's next column extolling the "compromise" between Republicans, who want to torture people, and Republicans, who want to torture people a little less. At least it was all so very civil.

Washington Post columnist E.J. Dionne this week explained why the much revered "sober, moderate opinion" that Broder seems to value above all else is inadequate to the challenges posed by the Bush administration and their right-wing allies. Writing about former President Bill Clinton's response to criticism of his anti-terror efforts, Dionne explained:

Sober, moderate opinion will say what sober, moderate opinion always says about an episode of this sort: Tut tut, Clinton looked unpresidential, we should worry about the future, not the past, blah, blah, blah.

But sober, moderate opinion was largely silent as the right wing slashed and distorted Clinton's record on terrorism. It largely stood by as the Bush administration tried to intimidate its own critics into silence. As a result, the day-to-day political conversation was tilted toward a distorted view of the past. All the sins of omission and commission were piled onto Clinton while Bush was cast as the nation's angelic avenger. And as conservatives understand, our view of the past greatly influences what we do in the present.

A genuinely sober and moderate view would recognize that it's time the scales of history were righted. Propagandistic accounts need to be challenged, systematically and consistently. The debate needed a very hard shove. Clinton delivered it.

Keith Olbermann gives the most important debates of our time a "very hard shove" nearly every night. Viewers who are more interested in the truth about what is happening in their country than in being distracted by pictures of cuddly animals and "the grand prize winners of the annual Weight Watchers Inspiring Stories contest" would do well to watch Olbermann's Countdown. And they would do well to read Cohen's Cable News Confidential to understand the pressures journalists of goodwill are under.

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