Beacon of Liberty

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WASHINGTON — Under detailed questioning by a federal judge, government lawyers asserted Wednesday that the U.S. military could hold foreigners indefinitely as enemy combatants at Guantanamo Bay, Cuba, even if they aided terrorists unintentionally and never fought the United States.

Could a "little old lady in Switzerland" who sent a check to an orphanage in Afghanistan be taken into custody if, unbeknownst to her, some of her donation was passed to Al Qaeda terrorists? asked U.S. District Judge Joyce Hens Green.

"She could," replied Deputy Associate Atty. Gen. Brian Boyle. "Someone's intention is clearly not a factor that would disable detention." It would be up to a newly established military review panel to decide whether to believe her and release her.

Boyle said the military could pick any foreigner who provided support to terrorists or might know of their plans. And the foreigners held on the U.S. naval base in Cuba "have no constitutional rights enforceable in this court," Boyle told the judge. ...

Green asked how the government defined an enemy combatant who aided terrorists or Afghanistan's now-toppled Taliban regime.

"It is not limited to individuals who carried a weapon and shot at American troops," Boyle replied.

They don't have to be on the front lines; they can be strategic advisors, intelligence informants, or supply workers, including cooks, he said.

Green asked if a hypothetical resident of England who taught English to the son of an Al Qaeda leader could be detained. Boyle said he could because "Al Qaeda could be trying to learn English to stage attacks there," and he compared that aid to "those shipping bullets to the front." Some detainees have been picked up in Bosnia and others in Africa.

Noting the Supreme Court said detention was to keep combatants from returning to the battlefield, Green asked: "What and where is the battlefield the U.S. military is trying to detain the prisoners from returning to? Africa? London?"

Boyle: "The conflict with Al Qaeda has a global reach."

So, just to be clear, the government is asserting it has the right to detain anyone, anywhere, who it accuses of doing something that might possibly be construed to have aided a possible future activity by someone labelled by the government as a "terrorist", whether or not that "terrorist" someone is even known to the detainee, or had actually proven to be a "terrorist", or whether the detainee actually intended to aid him, or even knew about it. The detainee can be held for this potentially unknown, unintended aid for as long as the ill-defined conflict continues, which we have already been told may be decades.

Their one chance at "due process", finally instituted after a recent Supreme Court decision? A military tribunal using rules that are currently being developed, outside of the Uniform Code of Military Justice and its precedents, the US Constitution or standards of international law.

Boyle said combatant status review tribunals set up by the U.S. military since the Supreme Court decision, and a subsequent annual administrative review by the military provided "more than sufficient due process" to satisfy the high court.

Wilner and other attorneys for detainees called the review tribunal process inadequate. They said the panels, which consisted of three military officers, had orders to presume the government's evidence was accurate and to accept statements given under torture, and didn't allow the detainee to have a lawyer or to see secret evidence against him.

I'm sorry, but this is insane. It was bad enough when such sweeping powers were being asserted theoretically by right-wingers at think-tank desks writing in magazines for their cohort. But this is a Deputy Associate Attorney General asserting this in a federal court!

Apparently, there are to be no limits on executive power. Since the Supreme Court said they had to, they are willing to hold hearings after the detention begins, wherein officers (sworn to follow orders from the executive) use newly invented procedures and dubious (or non-existent) rules of evidence to make decisions according to standards that they themselves decide. How can anyone educated at a US law school, or even having heard about "checks and balances" in civics class, claim this constitutes "more than sufficient due process?"

It's not even clear to me that the tribunal would even release the hypothetical little old lady in Switzerland, when she finally got her hearing. Since intent is "clearly not a factor that would disable detention," and "enemy combatant" is so broadly defined, and there are no standards of evidence to impeach the government's claim, and no standard of proof against which to measure her "threat," how can we say she isn't one? Maybe it would be better to err on the side of caution, and hold her.

This is how the Bush administration defends our liberty.