Military Commissions Act 2006 - Unchecked Powers?

by Anup Shah

Global Issues

www.zmag.org, October 2, 2006

US Senate votes to rollback habeas corpus, use torture, and provide immunity for US officials from torture prosecution

September 29, 2006, the US Senate agreed to the Military Commissions Act of 2006 which gives US President George Bush unprecedented power to detain and try people as part of their "War on Terror." President Bush is then expected to sign the Act into law. Broadly, the new Act does 3 things:

* Strips the right of detainees to habeas corpus (the traditional right of detainees to challenge their detention);

* Gives the US President the power to detain indefinitely anyone-US or foreign nationals, from within the US, and from abroad-it deems to have provided material support to anti-US hostilities, and even use secret and coerced evidence (i.e. through use of torture) to try detainees who will be held in secret US military prisons;

* Gives US officials immunity from prosecution for torturing detainees that were captured before the end of 2005 by US military and CIA.

The bill was passed by the Senate sixty five votes in favor, thirty four against. Twelve Democrats joined the Republican majority. The House passed virtually the same legislation a few days earlier on Wednesday, 27 September.

The New York Times noted the far-reaching powers the Act will give the president, and other top officials observing that, "Rather than reining in the formidable presidential powers asserted since Sept. 11, 2001, the law gives some of those powers a solid statutory foundation. In effect it allows the president to identify enemies, imprison them indefinitely and interrogate them-albeit with a ban on the harshest treatment-beyond the reach of the full court reviews traditionally afforded criminal defendants and ordinary prisoners." Furthermore, not only does the Act allow the president to determine the meaning and application of the Geneva Conventions, "it also strips the courts of jurisdiction to hear challenges to his interpretation."

This can have far-reaching consequences. For example, Amnesty International says the legislation will lead to violations of international law and standards and accuses the US Congress of "failing human rights" by voting for this Act and says it "deeply regrets that Congress failed to resist this executive pressure and instead has given a green light for violations of the USA's international obligations."

The international human rights organization expands on the above 3 points and is summarized here:

Striping habeas corpus and other fundamental rights

On this issue, Amnesty international notes that the Act will:

* Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant."

* Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.

* Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.

* Limit the right of charged detainees to be represented by counsel of their choosing.

Power to detain indefinitely and torture

On this issue, Amnesty international notes that the Act will:

* Fail to provide any guarantee that trials will be conducted within a reasonable time.

* Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.

* Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in procedures and in appointments of military judges and military officers.

* Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.

* Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence.

* Give the military commissions the power to hand down death sentences, in contravention of international standards. The clemency authority would be President Bush [who] has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.

* Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive.

Giving US officials immunity from prosecution

On this issue, Amnesty international notes that the Act 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 Article 3 common to the four Geneva Conventions.

* Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions."

* Endorse the administration's "war paradigm"-under which the USA has selectively applied the laws of war and rejected international human rights law.

Constitution, Rights Groups, and Others Alarmed

Amnesty International has also noted that the US has already been using techniques that are only now being passed into law. In effect, the US has already been violating human rights:

The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:

* Secret detention

* Enforced disappearance

* Torture and other cruel, inhuman or degrading treatment

* Outrages upon personal dignity, including humiliating treatment

* Denial and restriction of habeas corpus

* Indefinite detention without charge or trial

* Prolonged incommunicado detention

* Arbitrary detention

* Unfair trial procedures

Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity," including the "rule of law."

During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families.

Those defending human rights should be prepared for a long struggle.

- USA Military Commissions Act of 2006-Turning bad policy into bad law, Amnesty International, September 29, 2006, AI Index: AMR 51/154/2006

Furthermore, Amnesty International continues its criticisms noting "how vulnerable the law is to elastic interpretation, manipulation or selective application by the state. And that, for better or worse, a government can use policy to drive the law rather than vice versa. In the USA's case, a long-held resistance to applying international law to its own conduct compounds the problem."

Legal groups, such as the Center for Constitutional Rights, are already preparing to challenge the constitutionality of the law in court, as Democracy Now! noted in an interview with the Center's president, Michael Ratner, and with Senator Patrick Leahy, who was very critical of the bill's implication. That interview's transcript is cited here at length for it summarizes some of the fears and ramifications further:

Amy Goodman:

if you could explain exactly what this bill that the Senate has just approved

Senator Patrick Leahy:

First off, it's a terrible bill. It removes as many checks and balances as possible so that any president can basically set the law, determine what laws they'll follow and what laws they'll break and not have anybody be able to question them on it.

Habeas corpus was first brought in the Magna Carta in the 1200s. It's been a tenet of our rights as Americans. And what they're saying is that if you're an alien, even if you're in the United States legally, a legal alien, may have been here ten years, fifteen years, twenty years legally, if a determination is made by anybody in the executive that you may be a threat, they can hold you indefinitely, they could put you in Guantanamo, not bring any charges, not allow you to have a lawyer, not allow you to ever question what they've done, even in cases, as they now acknowledge, where they have large numbers of people in Guantanamo who are there by mistake, that they put you-say you're a college professor who has written on Islam or for whatever reason, and they lock you up. You're not even allowed to question it. You're not allowed to have a lawyer, not allowed to say, "Wait a minute, you've got the wrong person. Or you've got-the one you're looking for, their name is spelled similar to mine, but it's not me." It makes no difference. You have no recourse whatsoever.

This goes so much against everything we've ever done. Now, we've had some on the other side say, "Well, they're trying to give rights to terrorists." No, we're just saying that the United States will follow the rules it has before and will protect rights of people. We're not giving any new rights. We're just saying that if, for example, if you picked up the wrong person, you at least have a chance to get somebody independent to make that judgment.

And under the Constitution, that habeas can be suspended if there is an invasion, if there is an insurrection. We have neither case here. Even the most conservative Republican legal thinkers have said this is not a case to suspend habeas corpus.

The fact is this [Act] allows the Bush administration to act totally arbitrarily with no court or anybody else to raise any questions about it. It allows them to cover up any mistakes they make. And this goes beyond just marking everything "secret," as they do now. Every mistake they make, they just mark it "secret." But this is even worse. This means somebody could be locked up for five years, ten years, fifteen years, twenty years. They have the wrong person, and they have no rights to be able to say, "Hey guys, you've got the wrong person." It goes against everything that we've done as Americans.

You know, when things like this were done during the Cold War in some of the Iron Curtain countries, I remember all the speeches on the Senate floor, Democrats and Republicans alike saying, "How horrible this is! Thank God we don't do things like this in America." I wish they'd go back and listen to some of their speeches at that time.

Amy Goodman:

Michael Ratner of the Center for Constitutional Rights, your response about this groundbreaking legislation?

Michael Ratner:

Well, I think Senator Leahy really got it right. I mean, what this bill authorizes is really the authority of an authoritarian despot to the president. I mean, what it gives him is the power, as the senator said, to detain any person anywhere in the world, citizen or non-citizen, whether living in the United States or anywhere else. I mean, what kind of authority is that? No checks and balances. Nothing. Now, if you're a citizen, you still get your right of habeas corpus. If you're a non-citizen, as the senator pointed out, you're completely finished. Picked up, legal permanent resident in the United States, detained forever, no writ of habeas corpus.

- Democracy Now! "A Total Rollback Of Everything This Country Has Stood For" Sen. Patrick Leahy Blasts Congressional Approval, Democracy Now!, September 29, 2006 [citing rushed transcript]

Act Erodes Democratic Accountability of US Government

Supporters of the bill have defended it saying that this is not as totalitarian of Bush as some have feared, because it is the Senate and the House that have voted in this bill, demonstrating the democratic nature of this process.

However, one paradox of democracy is that people can vote in policies that are counter to democratic ideals or even non-democratic rulers (which a lot of commentators have noted has happened in Palestine as the people voted in Hamas).

Also, as Sentaor Leahey continues in the aforementioned interview, a "rubberstamp congress automatically has given the President anything he wants, because nobody's asked questions. The Republicans control both the House and the Senate. They will not call hearings."

Leahey notes there are all sorts of questions that the Bush Administration should be asked and held account for, ranging from corruption to torture and more. For example, he notes, the Republicans "won't try to find out how did Halliburton walk off with billions of dollars in cost overruns in Iraq. Why did the Bush administration refuse to send the body armor our troops needed in Iraq? Why did they send inferior material? And, of course, the two questions that the Congress would not ask, because the Republicans won't allow it, is, why did 9/11 happen on George Bush's watch when he had clear warnings that it was going to happen? Why did they allow it to happen? And secondly, when they had Osama bin Laden cornered, why didn't they get him? Had there been an independent congress, one that could ask questions, these questions would have been asked years ago. We'd be much better off. We would have had the answers to that. I think with those answers, we would not have the fiasco we have in Iraq today, we would have caught Osama bin Laden, Afghanistan would be a more stable place, and the world would be safer."

Rosa Brooks, writing in the Los Angeles Times adds that "It's far too late for [Bush] to leave a legacy that won't be a source of shame to future generations. So he's going for second best: a congressionally delivered get-out-of-jail-free card."

Defenders of the Act may think Senator Leahey might be being optimistic on his view that we'd be much better off without this Act, for we can never know, but certainly the questions he has raised, and many others, have been virtually ignored by not just the elected representatives, but most of the mainstream media.

With just this bill, for example, as Media Watchdog, Fairness and Accuracy In Reporting (FAIR) reveals in their CounterSpin radio show, the media reporting on the passing of this bill and its implications have been mostly ignored until very recently, instead focusing on a more sensational and shallow angle of which Republicans favor it and which do not.

Michael Ratner, also taking part in the CounterSpin show opined that the media coverage was just "terrible." This is unfortunately not surprising, as media coverage of both domestic and global issues by the US media has been poor for many, many years, as discussed further in this site's section on the mainstream media.

Aziz Huq, writing in the Huffington Post notes that the 2006 Military Commissions Act (MCA) "comprehensively assaults two ideas" that are the "basic tools of accountability"in a democratic government:

The idea of checking executive power by laws;

And the idea of a separate branch of government ensuring those limits to executive power are respected.

The Act's use of vague, or poorly-defined, terms also allows almost arbitrary, unaccountable detention and torture. For example for detention, Huq gives the following examples of vague terms that sound reasonable at first but can mean many different things to different people:

* When you "purposefully and materially support" hostilities;

* When you are designated an enemy combatant by the Combatant Status Review Tribunal or "another competent tribunal".

* When it comes to torture, vague terms and definitions mean torture can occur without having to call it torture.

Huq is quoted at length here:

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture. But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so-but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.

Second, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children-all long-recognized as forms of torture-that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information-well, that's just dandy.

- Aziz Huq, Sayonara to Checks and Balances?, Huffington Post (reposted by AlterNet.org), September 30, 2006

And in terms of how the idea of a separate branch of government to check the excesses of executive power is being undermined, Huq explains:

It's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

- Aziz Huq, Sayonara to Checks and Balances?, Huffington Post (reposted by AlterNet.org), September 30, 2006

Bush Says He Doesn't Do Torture-Depends On Your Definition

The United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law. Freedom from torture is an inalienable human right.

- Statement by President, George W. Bush, June 26, 2003

President Bush has repeatedly stressed that the US doesn't do torture and that he does not condone or authorize it. Instead, he says they use lawful 'alternative procedures' of interrogation, as Rosa Brooks noted in an opinion piece in the Los Angeles Times. However, as she asks, if everything is done lawfully, why is the White House suddenly so desperate to get a deal with Congress to 'clarify' Common Article 3 of the Geneva Convention and amend the War Crimes Act, which criminalizes violations of the article? She continues:

Behind the antiseptic talk of alternatives, dietary modification and stress positions lie methods designed to break human bodies and human minds. Legally and morally, many of the alternative interrogation methods championed by our president are torture, plain and simple. And there is no doubt at all that they're cruel, inhuman and degrading.

That's what the president is so worried about. He knows, too well, that the practices he authorized or ordered violate Common Article 3 of the Geneva Convention. The recent Supreme Court decision in Hamdan vs. Rumsfeld made that explicit, but the court's holding shouldn't have come as a surprise. It only confirmed what most legal scholars (and military lawyers) have been telling the White House for years.

- Rosa Brooks, Our Torturer-in-Chief, LA Times, September 22, 2006

Furthermore, how Bush defines torture is quite different to how most people understand it. Attorney Barbara Olshansky, also from the Center for Constitutional Rights, notes:

And when [President Bush] says the United States doesn't torture and I never authorize torture, that is a very interesting word play, because all of the government's documents, all of the White House documents, go to this issue of redefining torture in a way that we don't define it in the United States or in the world. And that definition says torture only occurs when someone's at the risk of immediate full organ failure or death. So that's the word "torture" that the president is using. That's not our constitutional definition of torture. That's not the international definition of torture. And you know what? That's not the American people's definition of torture.

- Barbara Olshansky, As CIA Detainees Transferred to Guantanamo, President Bush Acknowledges Secret Prisons, Interviewed by Democracy Now!, September 7, 2006

It has been known for a very long time that torture-or whatever one wishes to call some of the tactics-does not produce reliable intelligence, as people will confess to anything in order to have the torture stop.

As an aside, of the various torture methods that was initially feared to be permissible by the Bush Administration (as "alternative interrogation" techniques) is water-boarding, which is threatening to drown the prisoner through simulation. In a post by David Corn showing photos of what water-boarding torture looks like, Corn cites an email received from the photo owner, Jonah Blank, an anthropologist and former Senior Editor of US News & World Report. He is also a professorial lecturer at Johns Hopkins School of Advanced International Studies and has taught at Harvard and Georgetown. Blank notes the following about water-boarding:

Not only do waterboarding and the other types of torture currently being debated put us in company with the most vile regimes of the past half-century; they're also designed specifically to generate a (usually false) confession, not to obtain genuinely actionable intel. This isn't a matter of sacrificing moral values to keep us safe; it's sacrificing moral values for no purpose whatsoever.

- Jonah Blank in email to David Corn, This is what Waterboarding looks like, September 28, 2006

Challenging the Bill

Although legal groups are preparing to challenge this bill, that could take a long time to resolve. Furthermore, US Attorney General, Alberto Gonzalez, is in full support of Bush's anti-terror policies and tactics, and as the Associated Press revealed, Gonzalez has even warned federal judges not to substitute their personal views for the president's judgments in wartime.

Interestingly, Gonzales is accusing federal judges of using "personal views" if they do not fall in line, and implies that Bush's judgments do not need questioning-by some of the top experts in the legal field. (It also questions whether Gonzales himself is therefore too unquestioning in his role as US Attorney General.)

Gonzales notes that this is because the President's judgments are being made during "wartime". Yet, as argued long ago, to describe to the 9-11 terrorist attacks as an act of war rather than a criminal act allowed the president to declare a potentially never-ending war (and on an idea of terror, rather than against specific terrorist elements), and therefore claim additional powers that would otherwise be more questionable. This most fundamental point is hardly ever questioned.

The previously mentioned New York Times article also notes that, "Over all, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president." This serious implication of this is summarized by Bruce Ackerman, a professor of law and political science at Yale University, interviewed by the New York Times. He fears that, "If Congress can strip courts of jurisdiction over cases because it fears their outcome, judicial independence is threatened." In effect, the Act ironically codifies into law the ability for the Bush Administration to act outside the law.

Inter Press Service noted the concerns of many rights groups, and quoted Christopher Anders, legislative council for the American Civil Liberties Union, who said, "Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas corpus petition. But that's exactly what Congress just approved."

And as the Center for Constitutional Rights commented: "Congress is now rubber-stamping a bill that was written by the President which gives the President expansive power to detain without judicial oversight. If the Military Commissions Act is passed, it will grant the President the privilege of kings, allowing him to imprison any critics as alleged 'enemy combatants,' never to see the inside of a court room or to have the chance to challenge their detention or their treatment. What would we say if another country passed a law making it legal to snatch U.S. citizens and detain them indefinitely?"

If rights group hope to challenge this, as Amnesty International noted above, it would be a long struggle, because, as the New York Times also notes, this Act got Congressional approval, not just executive fiat, thus giving it a sense of legitimacy. "Earlier Supreme Court decisions have suggested that the president and Congress acting together in the national security arena can be an all-but-unstoppable force."

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