By Marjorie Cohn
Submitted to Portside by the Author
The Military Commissions Act of 2006 governing the
treatment of detainees is the culmination of relentless
fear-mongering by the Bush administration since the
September 11 terrorist attacks.
Because the bill was adopted with lightning speed,
barely anyone noticed that it empowers Bush to declare
not just aliens, but also U.S. citizens, "unlawful
Bush & Co. has portrayed the bill as a tough way to
deal with aliens to protect us against terrorism.
Frightened they might lose their majority in Congress
in the November elections, the Republicans rammed the
bill through Congress with little substantive debate.
Anyone who donates money to a charity that turns up on
Bush's list of "terrorist" organizations, or who speaks
out against the government's policies could be declared
an "unlawful enemy combatant" and imprisoned
indefinitely. That includes American citizens.
The bill also strips habeas corpus rights from detained
aliens who have been declared enemy combatants.
Congress has the constitutional power to suspend habeas
corpus only in times of rebellion or invasion. The
habeas-stripping provision in the new bill is
unconstitutional and the Supreme Court will likely say
so when the issue comes before it.
Although more insidious, this law follows in the
footsteps of other unnecessarily repressive
legislation. In times of war and national crisis, the
government has targeted immigrants and dissidents.
In 1798, the Federalist-led Congress, capitalizing on
the fear of war, passed the four Alien and Sedition
Acts to stifle dissent against the Federalist Party's
political agenda. The Naturalization Act extended the
time necessary for immigrants to reside in the U.S.
because most immigrants sympathized with the
The Alien Enemies Act provided for the arrest,
detention and deportation of male citizens of any
foreign nation at war with the United States. Many of
the 25,000 French citizens living in the U.S. could
have been expelled had France and America gone to war,
but this law was never used. The Alien Friends Act
authorized the deportation of any non-citizen suspected
of endangering the security of the U.S. government; the
law lasted only two years and no one was deported under
The Sedition Act provided criminal penalties for any
person who wrote, printed, published, or spoke anything
"false, scandalous and malicious" with the intent to
hold the government in "contempt or disrepute." The
Federalists argued it was necessary to suppress
criticism of the government in time of war. The
Republicans objected that the Sedition Act violated the
First Amendment, which had become part of the
Constitution seven years earlier. Employed exclusively
against Republicans, the Sedition Act was used to
target congressmen and newspaper editors who criticized
President John Adams.
Subsequent examples of laws passed and actions taken as
a result of fear-mongering during periods of xenophobia
are the Espionage Act of 1917, the Sedition Act of
1918, the Red Scare following World War I, the forcible
internment of people of Japanese descent during World
War II, and the Alien Registration Act of 1940 (the
During the McCarthy period of the 1950s, in an effort
to eradicate the perceived threat of communism, the
government engaged in widespread illegal surveillance
to threaten and silence anyone who had an unorthodox
political viewpoint. Many people were jailed,
blacklisted and lost their jobs. Thousands of lives
were shattered as the FBI engaged in "red-baiting."
One month after the terrorist attacks of September 11,
2001, United States Attorney General John Ashcroft
rushed the U.S.A. Patriot Act through a timid Congress.
The Patriot Act created a crime of domestic terrorism
aimed at political activists who protest government
policies, and set forth an ideological test for entry
into the United States.
In 1944, the Supreme Court upheld the legality of the
internment of Japanese and Japanese-American citizens
in Korematsu v. United States. Justice Robert Jackson
warned in his dissent that the ruling would "lie about
like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of
an urgent need."
That day has come with the Military Commissions Act of
2006. It provides the basis for the President to round-
up both aliens and U.S. citizens he determines have
given material support to terrorists. Kellogg Brown &
Root, a subsidiary of Cheney's Halliburton, is
constructing a huge facility at an undisclosed location
to hold tens of thousands of undesirables.
In his 1928 dissent in Olmstead v. United States,
Justice Louis Brandeis cautioned, "The greatest dangers
to liberty lurk in insidious encroachment by men of
zeal, well meaning but without understanding." Seventy-
three years later, former White House spokesman Ari
Fleischer, speaking for a zealous President, warned
Americans "they need to watch what they say, watch what
We can expect Bush to continue to exploit 9/11 to strip
us of more of our liberties. Our constitutional right
to dissent is in serious jeopardy. Benjamin Franklin's
prescient warning should give us pause: "They who would
give up an essential liberty for temporary security,
deserve neither liberty or security."
Marjorie Cohn, a professor at Thomas Jefferson School
of Law, is president-elect of the National Lawyers
Guild, and the U.S. representative to the executive
committee of the American Association of Jurists. Her
new book, Cowboy Republic: Six Ways the Bush Gang Has
Defied the Law, will be published in 2007 by