Last night the Senate of the United States voted to give the president sweeping new powers to arrest and detain non-citizens—and possibly citizens as well—either here or abroad, including individuals who are not engaged in armed conflict against the United States—and to hold them indefinitely without charge, without trial, and without access to federal habeas corpus review to challenge the legality of their detention.
A bill that permits indefinite detention without charge and without judicial recourse is an assault on the rule of law and an affront to American values. It will further tarnish our nation’s reputation for fairness and will place the men and women of our Armed Forces at further risk.
The measure, known as the Military Commissions Act, was previously passed by the House and is expected to be signed by the president as early as today.
The MCA legislation accedes to the president’s desire to establish a parallel legal system of military commissions for the trial of at least some of these detainees. That system, however, looks a good deal more like the military justice system it will supplant than the administration had wished, largely mirroring the Uniform Code of Military Justice with respect to the right of the accused to challenge the evidence used against him.
Yet the MCA deviates from the UCMJ in disturbing ways, permitting, for example, the use of certain evidence obtained through coercion if a judge finds it “reliable.” Coerced evidence is prohibited in both civilian and military courts because it is inherently unreliable. This provision not only compromises the fairness of the commission procedures but undermines the credibility of whatever verdicts may eventually be handed down.
President Bush had sought to have the bill redefine U.S. obligations under the Geneva Conventions to permit the use of “alternative interrogation procedures” that violate the convention standards for humane treatment of detainees. This, at least, Congress did not do. Indeed, the MCA reinforces those standards by prohibiting “grave breaches” of the Geneva Conventions and making it a criminal offense under the War Crimes Act to intentionally subject detainees to serious physical or mental pain or suffering.
This language should be sufficient to outlaw once and for all the use of waterboarding, induced hypothermia, prolonged stress positions, mock executions, extreme sleep deprivation, and other cruel and inhumane interrogation techniques that are prohibited not only by the Geneva Conventions but also by the Army’s own interrogation manual. While the legislation itself makes no mention of these specific techniques, Sen. Warner (R-VA), the chief Senate sponsor of the bill, made clear on the Senate floor that such procedures, “in my opinion, are in the category of grave breaches of Common Article Three of the Geneva Convention. These are clearly prohibited by the bill.”
Given this president’s propensity for twisting the law to suit his purposes, however, vigilance is needed to ensure that he does not exploit any ambiguities in the text of the legislation to permit the CIA to continue to engage in these prohibited practices. Should he do so, he will be in violation of not only the Geneva Conventions but also the Detainee Treatment Act of 2005, sponsored by Sen. John McCain (R-AZ), which prohibits cruel, inhuman, and degrading treatment.
Moreover, the bill—and particularly its suspension of habeas corpus—will inevitably face constitutional challenge. Article I, section 9 of the Constitution provides, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And the Supreme Court held in Rasul v. Bush (2004) that U.S. courts have jurisdiction to consider habeas challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. It seems certain that the Court will ultimately be asked to decide whether that precedent has now been overruled.
Read the letter sent to the Senate and this letter sent to the House by the Center for American Progress Action Fund and coalition partners urging the rejection of the Military Commissions Act of 2006.
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Read the letter sent today to the Senate, and this letter sent to the House by the Center for American Progress Action Fund to members of the House and Senate expressing concerns about this legislation.