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January 2007

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The Military Commissions Act

By Aaron Sussman
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O n October 17, George W. Bush, with Dick Cheney, Alberto Gonzales, and Donald Rumsfeld standing behind him, solemnly announced, “In memory of the victims of September 11, it is my honor to sign the Military Commissions Act of 2006 into law.” 

While the White House struggles to convince the nation that the Military Commissions Act (MCA) is perfectly legal and essential in order for the CIA to continue “one of the most successful intelligence efforts in American history,” the true implications of this act must be made clear. Out of its many dubious clauses, the most egregious is the one that eliminates the writ of habeas corpus (i.e., the right to challenge the legality of one’s imprisonment), a fundamental right that dates back to the Magna Carta. In his first Inaugural Address in 1801, Thomas Jefferson said, “Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government.” Ironically, the Supreme Court case which held that Bush’s original military tribunals were illegal, and that made the Congressionally approved MCA necessary, would never have occurred if the MCA had been in effect, as it was petitioned by a detainee. 

According to the MCA, “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.” This allows the president to seize a person who is in this country legally and detain that person indefinitely.  

So who exactly are these “enemy combatants?” The MCA says, “The term ‘unlawful combatant’ means…a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States …or a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president of the secretary of defense.” 

With such vague language as “purposefully and materially” and such ambiguous standards as “another competent tribunal,” it is not difficult to foresee the grave violations of human rights that the state can commit. According to Yale Law Professor Bruce Ackerman, author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism , the MCA “authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.” 

One of the few vociferous opponents of the MCA in the Senate, Patrick Leahy (D-VT), presented this chilling scenario: “Imagine, you are a law-abiding, lawful permanent resident…. You do charitable fund-raising for international relief agencies…. Then one day there is a knock at your door. The government thinks that the Muslim charity you sent money to may be funneling money to terrorists and that you may be involved. You are brought in for questioning. You ask for a lawyer, but no lawyer comes. Then you’re sent to Guantánamo. Then nothing for years, for decades, for the rest of your life.” 

Does giving money to this hypothetical charity fit the definition of “purposefully and materially?” Of course it does because all the term really means is that Bush has, what Thomas Jefferson School of Law Professor Marjorie Cohn calls, “the power of a dictator.” According to Molly Ivins, “One person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.” 

Once you are detained and denied the writ of habeas corpus, you effectively have no protections, no counsel, and no rights. Bush has repeatedly emphasized that “we do not torture” and “freedom from torture is an inalienable human right.” This is only true if you allow the Bush administration to define “torture,” a definition so nebulous that it might as well be changed to “whatever techniques are not being used by the U.S.” 

The MCA gives the president the authority to define and apply Common Article 3 of the Geneva Convention, which refers to the treatment of detainees, and to reconfigure the War Crimes Act to expunge this nation’s crimes. The MCA, according to Amnesty International, will “narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute ‘outrages upon personal dignity, particularly humiliating and degrading treatment’ banned under [Common Article 3].” This is a considerable relief for the torturers in our government. According to the Huffington Posts’s Aziz Huq, “The Bush administration has gutted the no torture rule…. It means that any government agent who says his goal was to get information, not to cause pain, hasn’t tortured.” 

The Bush administration, then, does not think it is torture when federal government employees engage “in acts such as soaking a prisoner’s hand in alcohol and lighting it on fire, administering electrical shocks, subjecting prisoners to repeated sexual abuse and assault—including sodomy with a bottle, raping a juvenile prisoner, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner’s ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-tofeet in a fetal position for 24 hours without food or water or access to a toilet, and breaking a prisoner’s shoulders.” Combine those horrors with what other countries do to suspects seized by the U.S. under the “extraordinary rendition” program and America’s shameful role as a violator of human rights is illuminated.  

We are consistently told that opposing these acts and maintaining a basic level of humanity and decency is tantamount to treason. Former speaker of the House Dennis Hastert claimed that opponents of the MCA are “putting their liberal agenda ahead of the security of America” and that Democrats “would gingerly pamper the terrorists who plan to destroy innocent American lives.” According to Hastert, we have the false dilemma of either “gingerly pamper[ing] the terrorists” or of criminally stripping Americans and non-Americans of their rights, torturing them, and committing the brutalities and excesses of tyrants. This is one of the many logical fallacies employed by the political leadership. 

When the MCA legislation was first introduced, the media considered the “substance a yawn” and preferred to “focus on the sexy rift between George Bush’s White House and those roguish Republican mavericks headed by John McCain.”  Michael Ratner, president of the Center for Constitutional Rights, pointed out on the Fairness and Accuracy in Reporting radio show “Counterspin” that, “There was no internal rift about habeas corpus, which was barely covered in the press.” By pitting these two ideologically similar contingents against each other as the only two sides of the debate, the media effectively erased the massive criticism leveled by Constitutional law experts, human rights activists, watchdog groups, and everyone else who has a stake in preserving civil liberties and international law. 

By the time the mainstream press addressed the real issues concerning the MCA, it was too late. A New York Times editorial titled “A Dangerous New Order” called the MCA “an unconstitutional act.” Unfortunately, the editorial, which could have influenced votes in the House and Senate, was run after the Act was signed. The editorial also erroneously states, “The law does not apply to American citizens, but it does apply to other legal United States residents.” In fact, as Robert Parry of Consortium News points out, the Act states that, “Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.” 

Another inaccurate statement was made on “Fox News Special Report” with Brit Hume, when correspondent Major Garrett said, “this bill does give detainees the right to appeal their status as enemy combatants, just not before civilian courts. They can appeal to a court of military review.” Detainees do not all have procedures to challenge their detention in court, an error that was addressed by the media watchdog group Media Matters. 

The seamless coupling of the Bush administration, Congress, and the media, combined with the powerlessness of the judiciary, exposes this anti-democratic collusion and the dissolution of “checks and balances.” It is a harsh blow to democracy when the criminals in the highest offices of the government prove they are not criminals by changing the laws that they have violated. The strategy of those who made the MCA into law is to erase their past crimes to pave the way for new ones. The MCA effectively immunizes government officials against allegations of torture and other war crimes. Surely this was a consideration when Alberto Gonzales told Bush that denying the Geneva Conventions would “substantially reduce the threat of domestic criminal prosecutions under the War Crimes Act.” 

Rosa Brooks wrote in the Los Angeles Times , “So he’s going for second best: a congressionally delivered get-out-of-jail-free card.” This “get-out-of-jail-free card,” while giving the Bush regime tyrannical powers and immunity for past crimes, has the reverse effect for all the co-conspirators who let Bush hurt this country. The MCA is the latest link in a chain that increasingly shackles democracy and progress, that tarnishes the rights and dignity of every person in every country, and that, with every new link, makes us accomplices to the crimes committed by our government, by the ones who hate our freedom. 

Aaron Sussman is co-founder and executive editor of Incite Magazine (www. InciteMagazine.com). 

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