Bush signs Military Commissions Act

From the Center for Constitutional Rights, Oct. 17:

Bush Signs the Military Commissions Act: CCR Calls it a Blow to Democracy and the Constitution
New York, NY – Today, the Center for Constitutional Rights (CCR) denounced President Bush’s signing into law of the Military Commissions Act (MCA). The final version of the bill emerged only four days before the Senate’s 11th hour vote. Although President Bush declared that “time was of the essence” when he called for the legislation, he has waited nearly two weeks to sign it into law. Congress has once again been cowed into doing the President’s bidding and abdicated their Constitutional powers in the process, say attorneys.

The new law strips the right of non-citizens to seek review of their detention by a court through the filing of a writ of habeas corpus, the venerated legal instrument that for centuries has protected people from arbitrary detention, disappearance and indefinite detention without charge. The Act is also meant to erase the hundreds of habeas corpus petitions that CCR and others have brought on behalf of many of the 450 men being held at Guantánamo Bay, a move already once denied by the Supreme Court.

Further, the MCA dramatically expands the President’s powers in an array of profoundly troubling ways, including permitting him to determine what constitutes torture and who may be labeled an “unlawful enemy combatant” and therefore detained indefinitely. Such scope means that non-citizens, such as those unjustifiably rounded up in sweeps after 9/11 in the U.S., could be held without charge or trial. U.S. citizens deemed to have “materially supported” hostilities against the United States could be held as enemy combatants as well. Once in U.S. custody, the law allows detainees to be subjected to stress positions, temperature extremes, sleep deprivation, and possibly waterboarding. It also defines sexual violence crimes so narrowly that some of the outrages of Abu Ghraib, such as forced nudity, would not be punishable, and defines rape and sexual abuse in a manner that is inconsistent with international law, turning back the clock on the hard-fought victories of survivors of sexual violence. At the same time, the bill provides retroactive immunity for U.S military and intelligence officials for the torture and abuse of detainees, including the widely condemned horrors which occurred at Abu Ghraib and Guantánamo.

Characterizing the new law as “an assault on the Constitution,” CCR Executive Director Vincent Warren said, “By trading our liberty for a false sense of security, Congress has effectively granted the President the power of tyrants to undermine the foundations of Democracy.” He added, “CCR intends to challenge this outrage at every turn, using every tool at our disposal, until we reverse this affront to the rule of law.”

Further, Warren pointed out that under this administration’s lawless programs, innocent people like CCR client rendition victim Maher Arar–who was recently cleared of any links to terrorism-can be jailed and tortured with no recourse.

CCR has already filed the first new cases to challenge the stripping of habeas corpus: Mohammed v. Rumsfeld, a habeas petition on behalf of 25 men detained at Bagram Air Force Base; and Khan v. Bush, a habeas petition on behalf of Majid Khan, a Baltimore man held in secret by the CIA for nearly three years until President Bush transferred him to Guantánamo in early September. Both cases are in the D.C. District Court.

The law will likely also be tested in two consolidated cases brought on behalf of Guantánamo detainees currently pending before the U.S. Court of Appeals, Al Odah v. United States of America and Boumediene v. Bush. These cases represent the first 13 habeas petitions filed on behalf of Guantánamo detainees and challenge the legality of the detention of 53 men. The initial appeal was argued on September 8, 2005, and the three-panel court has yet to issue its decision.

According to CCR legal director Bill Goodman, the provision of the MCA that strips the right of habeas corpus is a direct violation of the suspension clause of the U.S. Constitution because it denies non-citizens a meaningful opportunity to challenge the legality of their detention. The clause states that the writ of habeas corpus can only be suspended “in Cases of Rebellion or Invasion.” Goodman said recent reports of innocent men being released from Guantánamo underscore the importance of moving quickly to defeat this law:

“From Afghanistan to Spain and Germany to Pakistan, innocent men have been returned home to their families. We know, as does the Bush Administration, that many more of the roughly 450 men still held at Guantánamo are also innocent. To deny them the right to make their case and to win their freedom, is not only immoral and illegal, but undermines the concepts of liberty and democracy that this country was built on.”

Link added. See our last post on the torture state.

  1. Further details
    A commentary from the Jurist, Oct. 4:

    Challenging the Military Commissions Act

    Bill Goodman, Legal Director, Center for Constitutional Rights:

    The Center for Constitutional Rights is aggressively challenging the appalling Military Commissions Act (MCA) passed by Congress last week. Our allies have already contributed cogent analyses of some of the dangers posed by the MCA: its unprecedented and expansive suspension of habeas corpus, its retroactive amnesty for U.S. military and intelligence officials who have tortured detainees, its distortion of Common Article 3 of the Geneva Conventions, not to mention the willful surrender of the authority of Congress to check the worst excesses of the President.

    To develop this critique further, we think it’s important to draw attention to three elements of the bill in greater detail.

    * Under the MCA ‘unlawful enemy combatant’ (UEC) is broadly defined as a person who has:

    1. “engaged in hostilities or who has purposefully and materially supported hostilities against the United States” or its allies, or
    2. been deemed an enemy combatant by a Combatant Status Review Tribunal or “another competent tribunal” established by the President or the Secretary of Defense.

    The first definition is so sweeping that it could be read to include anyone who has donated money to a charity for orphans in Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C. The second definition could supersede the first entirely, granting the President shockingly wide latitude to declare anyone a UEC.

    * Habeas corpus is suspended for any non-citizen who is “detained as an enemy combatant or is awaiting such determination.” Habeas corpus, or the Great Writ, grants the accused the right to challenge their detention in a court of law. The jurisdiction-stripping provision in the MCA threatens to institutionalize racial profiling (such as the immigrant detention sweeps that followed the terrorist attacks of September 11) even as it denies our clients at Guantánamo Bay, most of whom have long since lost hope of a “speedy trial,” any hope of challenging their detention in court.

    * Rape would no longer qualify as torture unless the intent of the rapist to torture his victim could be proven. This regressive definition has been repeatedly rejected internationally. The MCA also narrowly defines coercion and sexual abuse, effectively making many of the crimes perpetrated at Abu Ghraib legal.

    Just prior to the enactment of the MCA, CCR filed a petition for habeas relief on behalf of 25 detainees held at Bagram Air Force Base in Afghanistan, as well as another petition on behalf of Majid Khan, one of the men recently transferred by President Bush from a secret CIA prison to Guantánamo Bay. These cases will present the first new challenges to the constitutionality of the suspension of habeas corpus under the MCA, the most ominous and far reaching threat to our civil liberties by this Administration yet.