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The Military Commissions Act of  2006

On October 17, 2006 the U.S. president, in accordance with every legal form and procedure, signed into law the “Military Commissions Act of 2006” – also known as the “Torture Bill” – and thus made legitimate much of what the administration had been doing all along. Stripped to its essentials and focusing on the worst, the law permits the federal government to:

  • Arrest and detain any  non-U.S. citizen  whom administration officials label an  “enemy combatant.” [1]
  • Do this off the battlefield and on U.S. soil.
  • Without giving the detainee access to a public court.
  • Indefinitely.
  • Torture  the detainee.
  • Yet a hasty reading of the Act gives the impression that it outlaws torture. And so it does, in a way. The catch is that a sly paragraph defines torture, when perpetrated by the U.S. government, vaguely – and substantially out of existence. We elaborate below.

    Torture was illegal before the Act, though the administration scoffed at the law. Now there is not much law to scoff at. Far from outlawing torture, the Act undoes torture’s illegality by whittling away at the idea of what constitutes torture.

    The Act allows any interrogation method that is less severe than an extremely high, and vague, standard it calls “serious physical pain or suffering.” From page 28 of the Military Commissions Act:

    ... OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished ... as a military commission under this chapter may direct.

    ... DEFINITIONS.—In this paragraph:
    ... The term  ‘serious physical pain or suffering’  means bodily injury that involves—
    (I)    a substantial risk of death;
    (II)   extreme physical pain;
    (III)  a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises);  or
    (IV)  significant loss or impairment of the function of a bodily member, organ, or mental faculty.
    If the torture – let’s call it by its right name – involves a  not-so-substantial  risk of death, serious physical pain, burns and physical disfigurement of a minor nature (major laceration and bruises no problemo), and minor permanent mental and physical impairment – the administration can now do it in the open.

    The Act ensures against torture by defining it away. The Act raises the bar for what the government considers torture so the government can deny it is torturing people – while it is torturing them. [2]

    In a White House interview on October 24, one week after the Act became law, Vice President Cheney said:

    “We don’t torture. That’s not what we’re involved in. ... But the fact is, you can have a fairly robust interrogation program without torture ... .” [3]
    Torture?  No, that’s not what they’re involved in !  They don’t torture, they “robustly interrogate.”

    A “fairly robust interrogation program” is a euphemism for institutionalized torture. Other nice phrases the government uses are “harsh interrogation,” “coercive interrogation,” “hostile interrogation,” “aggressive interrogation” and “enhanced interrogation techniques” – never torture. Cheney ignores the many prison accounts of head and body trauma, and of men robustly interrogated to death.

    If the  interrogator – who may enjoy his work – takes inflicting pain and suffering right up to the Act’s ill-defined limit, and in his enthusiasm – or bungling – goes over a bit, well, highway speedsters get an extra five  miles-per-hour  or so grace.

    When we should never have gone down this road.

    America has been going down it for several years now, but the authors of the Act knew how to deal with that. The Act makes its torture legal retroactively. [4]  With this trick the administration’s prior crimes in this line – when torture was at least nominally illegal – are now, apparently, beyond prosecution. [5]

    Doubtless one reason Bush and those in his administration wanted this Act was that they feared a saner future would prosecute them for their crimes. Such fear might have come to a head when the Supreme court, in Hamdan vs. Rumsfeld, November 2004, mandated that the executive branch must not indefinitely deny habeas corpus to prisoners at Guantánamo Bay. (Habeas corpus is a central principle of common law which requires that the government show the legal basis for holding a prisoner.) [6]

    One last comment on the contents of the Military Commissions Act:  It does not forbid or even mention “rendition,” whereby the CIA flies the detainee to a foreign country and has him tortured there instead of here.

    We now compare what Ayn Rand said about the rôle intellectuals play in our culture with the rôle the so-called Ayn Rand Institute is playing now.

    Ayn Rand says in her essay “For the New Intellectual” that the intellectuals – the men of words in the humanities – are the guardians of our culture. She explains how the intellectuals, from the time of the Industrial Revolution to modern times, betrayed that trust. As in an earlier age Attila the Hun got moral support from his resident witch doctor, so today’s dictators and would-be dictators get moral support from the intellectuals. She looks forward to an era when a new kind of intellectual will lead us out of the mess the earlier ones had created. A few quotes from her essay will help make this clear.

    The intellectuals, she says, bungled their job:

    “It was not the businessmen or the industrialists or the workers or the labor unions or the remnants of the feudal aristocracy that began the revolt against freedom and the demand for the return of the absolute state: it was the intellectuals. It was the alleged guardians of reason who brought mankind back to the rule of brute force.”

    “And, paving the way for Attila [that is, the barbarians], the intellectuals are still repeating, not by conviction any longer, but by rote, that the growth of government power is not an abridgment of freedom ... that dictatorship is not dictatorship if nobody calls it by that abstract name – and that none of us can help it, anyway.”

    What did the Ayn Rand Institute and its affiliates – our alleged New Intellectuals – have to say about the establishment of government torture and the other aspects of the Military Commissions Act that legalized Attila’s methods, during the congressional debate when public protest mattered the most? Keep in mind as you read the following that until last minute changes, the Act was even worse than what passed:  it applied to U.S. citizens as well as foreigners.

    Here is what the Ayn Rand Institute said in its countless Op-eds and Press Releases and Letters to the Editor:

    [This space intentionally left blank.]

    Here is what Impact, ARI’s newsletter, wrote while the Military Commissions Act was still in Congress:

    [This space intentionally left blank.]

    Here are the comments in the Fall issue of The Objectivist Standard: A Journal of Culture and Politics, whose writers at the time were largely ARI associates:

    [This space intentionally left blank.]

    Here is Robert Tracinski’s The Intellectual Activist on the prospect of the Military Commissions Act:

    [This space intentionally left blank.]

    In Mr. Tracinski’s TIA Daily newsletter, before the Act was passed we read:

    [This space intentionally left blank.]

    Here is Capitalism Magazine, an online collection of editorials which, though not run by an ARI associate, frequently publishes articles by ARI writers that ARI itself does not:

    [This space intentionally left blank.]

    Leonard Peikoff paused long enough from working on his book  The D.I.M. Hypothesis: The Epistemological Mechanics by which Philosophy Shapes Society  (eventually subtitled Why the Lights of the West Are Going Out) to observe:

    [This space intentionally left blank.]

    And not to be outdone, Harry Binswanger said bluntly:

    [This space intentionally left blank.]

    Witness the new intellectuals !  Or rather don’t witness them. The official, ARI, “new intellectuals” were out to lunch, train engineers asleep at the switch, total no-shows. They might as well have been for the installation of government torture, playing Witch Doctor to the neocons’ Attila. But then we knew they were:  see  Torture  and  Harry Binswanger on Torture  on this website.  (The latter article reviews what Mr. Binswanger wrote after the legislation was passed and before it was signed into law.)

    In the Cheney interview mentioned above, after Cheney praised the administration’s “robust interrogation program” he said:

    “And thanks to the leadership of the President now, and the action of the Congress, we have that authority, and we are able to continue [the] program.”
    Not to mention: Thanks to the Witch Doctors at the so-called Ayn Rand Institute.

    How did ARI react when the Act passed and Bush signed it into law? Still there is nothing, with one exception. The one exception is by Robert Tracinski, writing in TIA Daily, which though not an official publication of ARI, was on our watch because Mr. Tracinski was a guest writer  (*)  and long time associate of ARI.

    That Mr. Tracinski would approve of the Act comes as no surprise. Back during Hamdan vs. Rumsfeld when the Supreme Court found against Rumsfeld, he complained about the result in “Judge Upends Terrorist Prosecutions” TIA Daily November 9, 2004.

    Now, when Bush signs the Military Commissions Act into law, Mr. Tracinski complains again – not against the Act, rather against the ensuing storm of protest. The protest was heard not only in the patriot/libertarian parts of the alternative media but in some quarters of the mainstream media as well.

    In the TIA Daily for that day – October 17, 2006 (the issue however is misdated the 13th) – Mr. Tracinski praised the Act in his article “A Law for Unlawful Combatants.” He begins by summarizing the Hamdan vs. Rumsfeld decision, which was the springboard for the Military Commissions Act:

    “... the Supreme Court’s Hamdan decision found that a terrorist captured by American intelligence forces could not be held at the Guantanamo Bay military base without due process.”
    We interrupt his jaundiced history. The Supreme Court’s decision applied to all the detainees, and no objective evidence existed against many if not most of them. The point of the Court’s decision was to ensure that those labeled terrorists really were terrorists. Mr. Tracinski continues:
    “They further held that rules of procedure for any military trials conducted for the punishment of such a prisoner could not be written by an agency of the executive branch. They would have to be written by Congress. ... they held that terrorist detainees are legally entitled to the Geneva Conventions’ Common Article 3 prohibition against ‘outrages upon [the] personal dignity’ of prisoners of war ...”
    And he goes on to say that detainees are not so entitled, because
    “the treaty only applies to the combatants of an enemy government captured in the uniform of their armed services.”
    So as far as outrages upon your person are concerned, no uniform and you’re out of luck. Mr. Tracinski prefaces some of these remarks with  “As if there weren’t a war going on”  and  “Incredibly.”  After a bit more of this he writes:
    “After conferring with the president, Congress drew up procedures for military tribunals that would allow the use of secret evidence and allow methods of coerced interrogation, short of torture [yeah, right] that would probably [how about certainly] be considered illegal ‘humiliation’ [how about ‘torture’ – and without derogatory quotes] under the Geneva Conventions. Today the president signed that measure, the Military Commissions Act, into law.”
    Mr. Tracinski then reviews – or thinks he reviews – Senator Russ Feingold’s response to the Act. The trouble is, Mr. Tracinski inadvertently quotes and links to what Sen. Feingold said years earlier, on October 25, 2001, about another bill entirely. [7]  However, what Sen. Feingold said then does more or less apply to the Military Commissions Act. We will go along with Mr. Tracinski’s mistake because we are reviewing this new intellectual’s reaction and beliefs.
    “He [Sen. Feingold] compared the measure to ‘The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War.’ He then went on to enumerate the many extra-judicial powers the law gives the president.

    “Sen. Feingold describes the technical contents of the law accurately. His comments should be taken as a warning against any attempt to abuse the new law.”
    As if the administration were not abusing the Act at the very time he was writing this !  As if the administration had not been abusing the content of the Act all along !  Mr. Tracinski tries to fit the reader with the same pair of blinders that he wears.
    “But his [Sen. Feingold’s] whole argument, like that of the Supreme Court, evades the de facto war in which the United States is now engaged.”
    War, that magic word, justifies everything. Mr. Tracinski goes on to consider the pitfalls of Congress declaring war, then writes:
    “Yes, Congress should declare war. But even if they did, that would not answer Sen. Feingold’s complaint because it equates abuses of power like the FBI surveillance of Marin Luther King with the necessary war-fighting powers President Lincoln exercised—and President Bush needs to exercise.”
    ! ! !  Lincoln not only suspended habeas corpus for Northerners and Southerners alike, he arrested and jailed Northern congressmen and newspapermen who opposed his policies. [8]  And he should be Bush’s role model?

    Criticizing these “new intellectuals” is really unnecessary. Just sit back and watch as each mounts the scaffold, loops the noose around his neck, and jumps.

    Mr. Tracinski then quotes from a blog called The Belmont Club belonging to “Wretchard,” the nom de blog of one Richard Fernandez  “of Filipino birth [and upbringing] and Australian citizenship”  – as Mr. Fernandez says elsewhere. The entry Mr. Tracinski admiringly quotes is entitled “The double-bind” dated September 29, 2006. After some general remarks Mr. Fernandez writes:

    “... on the subject of the detention and interrogation of terrorist suspects Democrats focused on the dangers to liberty and the possible inhumanity the bill presented without providing a plausible alternative path to how terrorists could be effectively questioned or put away.”
    All the Democrats need have said is that a non-confession is worth more than a tortured confession, and that someone can be “put away” – that is jailed – without torturing them.

    Mr. Fernandez continues:

    “This was a psychological nonstarter. Answering that ‘waterboarding’ was cruel to the question how do you get information to protect the public was to miss the point.”
    He misses the point. The point is Western civilization, and if one sets aside Western civilization the point is that waterboarding and other tortures of suspects do absolutely nothing to protect the public. I elaborate in Binswanger on Torture on this website. Mr. Fernandez continues:
    “You can tell a man about to jump from a plane [that] his parachute is defective, but unless you offer [him] another [parachute] he’ll jump with the defective [one] rather than none at all.”
    Clever if illiterate, no? In other words, torture may not be so hot but gosh we must do something. Mr. Fernandez continues:
    “A position largely based on negation has no depth.”
    Like the Bill of Rights, which is a string of negatives: The government may not do this to you and may not do that. Mr. Fernandez’s  sound-bite might sound good, but look what the man is selling.

    Elsewhere in his blog this Filipino/Australian endorses Alan Dershowitz’s plan for “torture warrants” for Americans. What amazes is that Mr. Tracinski felt he had to reach so far as this Third World nincompoop in order to find someone he agrees with.

    The next day, October 18, perhaps in response to an outcry from his readers, Mr. Tracinski abruptly – and transiently – changes his tune. He writes of the Act:

    “... this solution will create problems of its own.”
    and without further comment links to an interview conducted by Keith Olbermann, providing a brief quote. Too little too late. Mr. Tracinski then dropped the subject entirely – a bump and run.

    And that’s what we have from ARI and its associates regarding the Military Commissions Act of 2006, one of the lowest points in U.S. history.

    1  The final version of the Act that Congress passed, if taken precisely as written, is restricted to foreigners. The existence of earlier versions containing no such restriction, and the complex legalese in which they all were written, led to some debate among commentators over whether the Act applies to U.S. citizens as well as foreigners. See
    “Final Military Commission Act Does NOT Apply To U.S. Citizens (?)”
    by Joel Skousen, World Affairs Brief.
    But as Mr. Skousen points out, in spite of the Act’s wording the administration may well apply it to Americans. And, we observe, once a bureaucracy gets comfortable torturing foreigners, branching out won’t be so difficult.

    Even as written, the worst parts of the Act may apply to American citizens. The following is from page 4 of the Act:

    “... JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant ... .”

    This may sound as if U.S. citizens, unlike aliens, are safe from the military commission. But consider the two cases, aliens and citizens. According to the Act, if an alien gets labeled an enemy combatant that’s the end of it, he may not invoke habeas corpus to challenge that designation. Apparently a citizen, too, may be labeled an enemy combatant, but then he may – being a citizen – invoke habeas corpus and challenge it. But if he loses that challenge he will, apparently, end up interrogated and tried by the same military commission as the alien. The Act is less than clear but you can be sure the government will interpret the Act to its advantage.

    For more legal commentary see  (I know, the second is by a blasted leftist, but some leftists are better in some respects than most conservatives – and everyone at the Ayn Rand Institute):

    “Bush signs Military Commissions Act”
    Jurist Legal News and Research, University of Pittsburgh School of Law

    “The Legalization of Torture and Permanent Detention”

    “How to Make a Power Grab ‘Mundane’ ”
    by James Bovard

    The day Bush signed the law, the White House provided a “Fact Sheet” interpreting the law for us yokels:

    “The Military Commissions Act Will ... Allow Us To Prosecute Captured Terrorists For War Crimes Through Full And Fair Trials.”

    This must be parsed carefully, since the purpose of a trial is to determine if a suspect, not a criminal, is a criminal. The Act streamlines the process. It allows hearsay evidence, confessions obtained under  let’s-not-call-it-torture  torture, secret evidence, and evidence obtained without a warrant, while the administration is both judge, jury and executioner. “Full And Fair Trials” is a  Soviet-style  lying-truth.

    The “Fact Sheet” says that the Act:

    “Provides legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs;”

    Or fear lawsuits filed by anyone about being abused. But that’s me, not the fact sheet.

    “Spells out specific, recognizable offenses that would be considered crimes in the handling of detainees – so that our men and women who question captured terrorists can perform their duties to the fullest extent of the law;”

    Torture now being within the law.

    “Complies with both the spirit and the letter of our international obligations.”

    This lie colors what the “fact” sheet claims next, that the administration’s interrogation methods have saved American lives. It’s even less believable than the WMD claim.

    “Fact Sheet: The Military Commissions Act of 2006”

    2  Much as in the earlier Justice Department memo of August 2002, drafted for Assistant Attorney General Jay Bybee by John Yoo and signed by Alberto Gonzales. Though on the surface the Act’s  it’s-not-torture  limit is lower than that of Yoo and Gonzales, thugs are not known for making fine distinctions. Here is what Yoo/Gonzales wrote in their memo:

    “Physical pain amounting to torture [in other words, to be considered torture] must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

    The Justice Department seemingly revised this position in a 2004 opinion, but Mr. Yoo in his recent book, War by Other Means, says – approvingly – that the opinion:

    “included a footnote to say that all interrogation methods that earlier opinions had said were legal were still legal. In other words, the differences in the opinions were for appearances’ sake. In the real world of interrogation policy nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.”

    In other words, eyewash for the masses.

    3  “Interview of the Vice President by Scott Hennen, WDAY at Radio Day at the White House”
    The Vice President's Office  October 24, 2006

    CIA spokeswoman Michelle Neff:

    “While we do not discuss specific interrogation methods, the techniques we use have been reviewed by the Department of Justice and are in keeping with our laws and treaty obligations. We neither conduct nor condone torture.”

    Properly defined. And not counting “rendition.”

    “Cheney confirms that detainees were subjected to water-boarding”
    McClatchy Newspapers  October 25, 2006

    4  Specifically, it is backdated nine years. From page 36 of the Military Commissions Act:

    “RETROACTIVE APPLICABILITY.—The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105–118 (as amended by section 4002(e)(7) of Public Law 107–273).”

    I haven’t followed all the twists and turns of these references, but clearly this was a major criminal laundering in progress.

    5  We might pin some hope on the Supreme Court, but not much. As Paul Craig Roberts points out (in “The Fault Lies in Ourselves,” October 26, 2006), even before 9/11 many civil liberties had been so eroded that they were dead-letter rights, violated with impunity. “The Bush administration’s recent detainee and torture legislation merely took some of these dead-letter rights off the books. Even if the Supreme Court puts the rights back on the books, they have been eroded by legal precedent and neglect.”

    6  The Department of Justice wasted no time implementing the Act:

    “Immediately after Bush signed the act into law ...”
    “[the Justice Department] formally notified the U.S. District Court here [Washington D.C.] that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.
    “... the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that ‘no court, justice, or judge’ can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.”

    “Court Told It Lacks Power in Detainee Cases”
    Washington Post  October 20, 2006

    “We Are All Torturers Now”
    The New York Times  January 5, 2005

    *  At various times Mr. Tracinski has been an ARI guest writer, senior writer, senior fellow, and the ARI editorial director. Though ARI issued no public statement about the departure of one of their most visible and prolific writers, it turns out Mr. Tracinski was no longer employed at ARI by 2006. Mr. Tracinski himself says he chose to end his employment in order to focus on The Intellectual Activist. His last article published by ARI is dated January 12, 2004 and his last course for the Objectivist Academic Center ended in 2005. The trouble for us is that Capitalism Magazine published an article of his as recently as April 2006 under the designation ARI guest writer.

    7  Mr. Tracinski quotes
    from October 25, 2001, about the first proposed so-called Patriot Act,  when he should have quoted
    from October 17, 2006.  Sen. Feingold also spoke against the Act on September 28, 2006, the day after it passed:
    www.feingold.senate.gov/~feingold/statements/06/09/20060928.htm .
    (Sen. Feingold was less outspoken during the Act’s debate. Apparently he is just another congresscritter going through the motions.)

    8  Lincoln also instituted conscription, unknown to America before this. The permanent result of the Civil War was a vast increase in the centralization of government power. ARI writers, though, paint a different picture. Here is the late John Lewis, writing in “William Tecumseh Sherman and the Moral Impetus for Victory” (The Objective Standard Summer 2006):

    “... one ideological issue was at the center of the conflict between the North and the South – individualism versus statism – and it took the form of one concrete alternative: individual freedom versus chattel slavery. Individualism – the dominant theme of the American Constitution – places the individual over a government that is strictly limited to the protection of the freedom of the individual. Statism, on the other hand, places the government over the individual, and enables the former to violate the rights of the latter.”

    For real history, instead of whitewash, see the Civil War section of the Links page on this website.