Dangerous Presidential Powers: From Citizen to "Enemy Combatant"

by C. Clark Kissinger

Revolutionary Worker #1236, April 11, 2004, posted at http://rwor.org

As part of their "global War on Terrorism," the U.S. government and military have begun to seize people all over the world, including U.S. citizens, designating them as "enemy combatants" solely on the say-so of President Bush. This new extra-legal use of the military represents a qualitative leap toward a new and ominous global police state.

As RCP Chairman Bob Avakian recently put it, the U.S. "can't go and wage open-ended war like this and not have a lot of repressive mechanisms already being implemented and much more machinery ready to bring into play."

On April 20, the U.S. Supreme Court will hear oral arguments on behalf of prisoners being held in the government's concentration camp at Guantánamo, Cuba. All the prisoners sent to Guantánamo, including children as young as 13, have been designated as "enemy combatants." At present, prisoners from 42 different countries are being held there. Many of these were captured in Afghanistan, but others were seized in other countries occupied by the U.S., such as Bosnia.

On April 28, the Court will hear the appeals of Jose Padilla and Yaser Hamdi, two U.S. citizens being held without charges in military custody by order of George W. Bush. This is a president whose utter lack of truthfulness on such things as weapons of mass destruction in Iraq is recognized by millions of people around the world. But on his say-so alone, Padilla and Hamdi have been designated as "enemy combatants" and deprived of any forum in which to contest either the truth or the lawfulness of this designation.

A great deal is at stake in these cases. The government claims that neither the U.S. courts nor the Geneva Convention on the treatment of prisoners of war has any jurisdiction over what happens to Padilla and Hamdi or at Guantánamo. In short, the government is moving quickly toward a more fascistic form of rule under which persons, including citizens, can be held incommunicado indefinitely, without charges or judicial review, based solely on the president's decision.

They Can't Do That, Can They?

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [which defines prisoner of war status], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

from Article 5 of the Geneva Convention on the Treatment of Prisoners of War (1949)

"The United States is given jurisdiction over Guantánamo Bay `generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.' "

from the 1903 Treaty forced on Cuba by the United States

The term "enemy combatant" has always simply meant someone fighting on the opposite side. Historically, captured enemy soldiers have been treated as prisoners of war and accorded the safeguards and protections of the Geneva Convention, which include prompt repatriation upon the termination of the war.

The Bush administration now wants to change all that, by creating a new category for its military opponents--that of so-called "enemy combatants," who are not considered prisoners of war but rather some sort of international criminals who are to be tried and possibly executed by kangaroo courts set up by the U.S. military. These are tribunals that do not observe the basic procedures of due process (such as the right of the accused to see evidence or question witnesses against them) and from which there is no appeal.

Over 600 such persons are being held in an elaborate concentration camp within the U.S. naval station at Guantánamo, Cuba. This location was chosen because it is an area over which the U.S. military exercises complete sovereignty. At the same time, the government claims that U.S. courts have no jurisdiction over what happens there because it is not a U.S. territory.

The alleged justification for designating the Guantánamo prisoners as "enemy combatants" is that they did not observe the "rules of war." But the so-called "rules of war" were established by the imperialists with their own interests in mind. For example, their rules require that "lawful combatants" wear a distinctive uniform and carry arms openly. One can easily see how such rules favor the occupying imperialists but deny protection to resistance movements or revolutionaries engaged in liberating people's wars.

In applying their rules the imperialists conveniently ignore the privately contracted gunmen used by the U.S. in Iraq, as well as the CIA agents and U.S. Special Forces running around Afghanistan wearing Afghan dress and sporting Islamic beards, as they try to "blend in" with the population.

None of the prisoners at Guantánamo has been given an opportunity, as required by the Geneva Convention, to contest before "a competent tribunal" whether they were even combatants at all. Of the few that have been released, many have charged that they were literally picked up off the street and had no idea why they were transported to Guantánamo and held incommunicado for months.

The whole world has been shocked by the few photographs from Guantánamo, showing prisoners held in wire-mesh cages, often hooded and shackled, undergoing hours of "interrogation" and made to kneel in painful positions. Of the over 600 prisoners held at Guantánamo, a grand total of two have actually been charged with anything at all--in both cases a single charge of conspiracy "to join an enterprise of persons who shared a common criminal purpose," for activities like allegedly serving as a driver for Osama bin Laden's car.

The U.S. now brags of having established a "state of the art" interrogation facility at Guantánamo. Those few prisoners released from Guantánamo have told horror stories of treatment that some government officials have termed interrogation "just short of torture." Other prisoners have been "outsourced" for interrogation to countries that regularly employ torture. And at the Bagram air base in Afghanistan, two prisoners have already died under U.S. interrogation, their deaths ruled as homicides by the military's own forensic experts.

The Case of Yaser Hamdi

"We turn then to the question of whether, because he is an American citizen currently detained on American soil by the military, Hamdi can be heard in an Article III [civilian federal] court to rebut the factual assertions that were submitted to support the "enemy combatant" designation. We hold that no evidentiary hearing or factual inquiry on our part is necessary or proper, because it is undisputed that Hamdi was captured in a zone of active combat operations in a foreign country and because any inquiry must be circumscribed to avoid encroachment into the military affairs entrusted to the executive branch."

From the decision of 4th Circuit Court of Appeals

The government never tires of telling how Yaser Hamdi was "captured under arms" in a war zone in Afghanistan, as though he were directly fighting U.S. forces. What they don't tell you is that Hamdi was actually captured by the Northern warlords in the Afghanistan civil war. Because he was not Afghani, he was turned over to U.S. forces who promptly shipped him off to Guantánamo.

Hamdi was born in Louisiana of Saudi parents who moved back to Saudi Arabia, where he grew up. After being taken to Guantánamo, because Hamdi asserted his U.S. citizenship, he was transferred to the Norfolk Naval Station Brig in Virginia. There a federal district court assigned a federal public defender to represent him. When the district court ordered the government to let Hamdi see his lawyer, the government refused and appealed to the 4th Circuit Court of Appeals, which then reversed the district court's order. So Hamdi never got to see his lawyer.

When the district court persisted in looking into whether Hamdi's rights were being violated, the government moved to dismiss Hamdi's petition for habeas corpus and gave the court a letter from one Michael H. Mobbs. Mobbs, whom nobody ever heard of before, bears the august title of "Special Advisor to the Under Secretary of Defense for Policy." The "Mobbs declaration" stated the bare bones of the government's contentions: that Hamdi had traveled to Afghanistan in July or August of 2001 (well before 9/11) and was later captured when his Taliban unit surrendered to the Northern warlords.

The district court, however, ridiculed the Mobbs declaration, saying it was not sufficient proof of anything, let alone sufficient to classify Hamdi as an enemy combatant. The district court then ordered the government to turn over all the records concerning Hamdi. Again the government appealed to the 4th Circuit.

At this point, the 4th Circuit Court of Appeals delivered the following amazing ruling: "We hold that the submitted [Mobbs] declaration is a sufficient basis upon which to conclude that the Comman- der in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition." [our emphasis]

In other words, Hamdi is guilty because "the Commander in Chief" says so, and the lower court is forbidden to inquire into the lawfulness of his detention. It is this ruling that the Supreme Court will now review.

The Case of Jose Padilla

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

from the Non Detention Act of 1971

I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that . Jose Padilla, who is under the control of the Department of Justice and who is a U.S. citizen, is, and at the time he entered the United States in May 2002 was, an enemy combatant. Accordingly, you [the Secretary of Defense] are directed to detain Mr. Padilla as an enemy combatant.

from a Presidential Order signed June 9, 2002

Jose Padilla was not captured on a foreign battlefield. Instead, Bush ordered him to be "captured" from his cell in New York's Metropolitan Correctional Center.

Padilla, a U.S. citizen, was born in Brooklyn, NY, and later moved to Chicago. While in prison, he converted to Islam and took the Muslim name Abdullah al Muhajir. The government claims that he moved to Egypt in 1998 and later traveled in Pakistan, Afghanistan, and Saudi Arabia. On May 8, 2002, Padilla flew to Chicago from Pakistan by way of Switzerland.

When Padilla arrived at O'Hare airport in Chicago, he was arrested by FBI agents on a material witness warrant. The use of material witness warrants to hold people indefinitely without charges has been one of the many abuses of law in the period since 9/11. Padilla was shipped to New York, where he was assigned a defense attorney.

In contrast to Hamdi, Padilla did get to confer with his lawyer. He was scheduled to appear before a federal district court judge on June 11, 2002, on a motion to vacate the material witness warrant. On June 9, however, the President issued an order taking Padilla out of the custody of the federal marshals and transferring him to military custody. He was then whisked away to the Consolidated Naval Brig in Charleston, SC.

Outraged over Padilla's kidnapping by the President to prevent him from having his day in court, Padilla's lawyer petitioned for a writ of habeas corpus. Once again the venerable Mr. Dobbs produced a declaration for the court--this time, he gave the government's story that Padilla was planning to set off a radioactive "dirty bomb" at the behest of Al Quaeda and that this justified his military detention as an "enemy combatant" and banning of any further contact with his court-appointed lawyer.

What happened next is rather frightening. The federal district court in New York City ruled that the president did indeed have the authority to detain U.S. citizens as enemy combatants and the court would only consider whether or not the government had "some evidence" to justify this designation. The concept that the president need only possess "some evidence" in order to place a citizen into what many are calling a "legal Black Hole"--from which there is no appeal--is rather unprecedented.

In support of its request that Padilla not be allowed to see his lawyer again, the government submitted a declaration from Vice Admiral Lowell E. Jacoby, director of the Defense Intelligence Agency. Admiral Jacoby argued that the government's "robust" interrogation depended on developing "a relationship of trust and dependency," so that Padilla would come to understand "that he is reliant on his interrogators for his basic needs and desires." In other words, Padilla must come to feel that he has no hope other than through cooperation with his military interrogators.

The 2nd Circuit Court of Appeals reversed the lower court and ruled, among other things, that 1) the President's constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat; 2) the Non-Detention Act prohibits the detention of American citizens without express congressional authorization; and 3) neither the Joint Resolution by Congress on Sept. 15, 2001, authorizing military action against al-Qaida nor the appropriation of funds for the detention of prisoners of war constitutes such authorization by Congress.

The government's appeal of this ruling will be heard by the Supreme Court on April 28.

Where All This Is Heading

"We are likely to experience more restrictions on our personal freedom than has ever been the case in our country."

Supreme Court Justice Sandra Day O'Connor, speaking shortly after 9/11

"This will be a situation in which it may become outlawed not only to call for the overthrow of the present system, for example, but even to actively oppose what the imperialists are doing, even to mobilize demonstrations against the war, even to speak out against the war, may be things that become banned or things for which you'll be thrown in jail -- perhaps even put before a military tribunal and shot."

from a talk by Bob Avakian in early 2002

In 1971, following the disclosure of abuses of power by the FBI and other government agencies, the Congress revoked the Emergency Detention Act of 1950. It replaced this Cold War legislation with the No Detention Act to make it clear that the executive branch has no authority to seize and hold citizens without the authorization of law. Yet that is exactly what is happening.

There is an extraordinary consensus in the ruling circles of the U.S., among the leaders of both parties, behind a program of global domination. Its counterpart at home has been the roundups and registration of people from Muslim and South Asian countries, expanded government search and seizure under the Patriot Act, the attempt to intimidate political dissent by saying "you're either with us or you support the terrorists," and a call to impose religious-based "traditional values" on the whole of society.

The domestic analog of so-called "preventive wars" abroad has been the deployment of the military in domestic police and detention roles, and the detention by the military of persons alleged to pose a future threat. For the first time the Defense Department has appointed an overall military commander for internal United States.

The government's targets are not confined to those opponents labeled as "Islamic terrorists." While the U.S. rulers have had to deal with rival imperialists, reactionary nationalists, and Islamist populism, they have shown a certain degree of foresight about who their most implacable foes are by quietly adding the Communist Party of Nepal (Maoist), the Communist Party of Peru, and the Communist Party of the Philippines to their official lists of "terrorist" organizations and trying to lump them in with Islamic fundamentalists.

This deliberate conflating of liberating people's war with religious fundamentalism and terrorism, and the official listing of revolutionary communist parties as "terrorist," is designed to unleash wartime legal mechanisms against any persons or organizations who support real revolutionary change by the oppressed.

Where does this logic lead? It is heading toward such things as the deployment of the military against political opponents of the state and to the designation of political opponents of U.S. wars and interventions around the world (under the guise of "war on terrorism") as "enemy combatants." The government has asserted in its court papers that the President has unrestricted powers as commander-in-chief to deal with "enemy combatants" wherever they are found. On June 5, 2003, Ashcroft told the House Judiciary Committee rather pointedly that the streets of America are now a "war zone."

Both the Wall Street Journal and the L.A. Times have reported government plans for expanding the facilities to detain more citizens as "enemy combatants." The Consolidated Naval Brig in Charleston is reported to have facilities for 20 such prisoners. The danger now is that the U.S. Supreme Court--the same court that put Bush in office--will uphold and legitimize these lawless actions by the president by requiring little or no review by the courts.

These dangerous developments underscore the importance of the protests scheduled for April 20 and April 28, when the high court hears the arguments on the Guantánamo detainees and the cases of Hamdi and Padilla.