US Military Commissions Act 2006—Unchecked Powers?
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This web page has the following sub-sections:
- US Senate votes to roll back habeas corpus, use torture, and provide immunity for US officials from torture prosecution
- Constitution, Rights Groups, and Others Alarmed
- Act Erodes Democratic Accountability of US Government
- Bush Says He Doesn’t Do Torture—Depends On Your Definition
- Challenging the Bill
US Senate votes to roll back 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 foundation1. 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 standards2 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 (see previous link) and is summarized here:
Stripping 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
- 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 activitiesby 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 combatantunder any
competent tribunalestablished 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 treatmentbanned under Article 3 common to the four Geneva Conventions.
- Prohibit the US courts from using
foreign or international lawto 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:
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:
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 (see link further below for the source article) 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 recently5, 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 media6.
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 accountabilityin 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 supporthostilities;
- 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:
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:
Bush Says He Doesn’t Do Torture—Depends On Your Definition
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 Convention10 and amend the War Crimes Act11, which criminalizes violations of the article? She continues:
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:
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:
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 wartime15.
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 war16 (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. The 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 groups17, 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 kings18, 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?
[The act was passed, and President Bush signed the act into law in October, 2006 shortly after.]
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.
This article has the following parts:
- US Military Commissions Act 2006—Unchecked Powers?
- “A Total Rollback Of Everything US Has Stood For”: Sen. Patrick Leahy
- Sayonara to Checks and Balances?
- Bush Offers Himself Amnesty for Human Rights Crimes
- US Military Commissions Act 2006—Turning Bad Policy Into Bad Law
- Groups Unanimously Assail New Detention Law
- US War Crimes Act Changes Would Reduce Threat Of Prosecution
- President Bush Acknowledges Secret Prisons
- Outlawed: Extraordinary Rendition, Torture and Disappearances in the “War on Terror”
- Detainee Memo Created Divide in White House
- Bush Administration seeks silence on CIA prisons
- War Crimes Suit Prepared against Rumsfeld
- Bush’s Torture Ban is Full of Loopholes
(Note that listed here are only those hyperlinks to other articles from other web sites or elsewhere on this web site. Other sources such as journal, books and magazines, are mentioned above in the original text. Please also note that links to external sites are beyond my control. They might become unavailable temporarily or permanently since you read this, depending on the policies of those sites, which I cannot unfortunately do anything about.)
- ‘Rubber stamping violations in the “war on terror”: Congress fails human rights’, Amnesty International, September 29, 2006, AI Index: AMR 51/155/2006, http://web.amnesty.org/library/index/ENGAMR511552006
- External Link:Counterspin, FAIR, September 29, 2006, http://www.fair.org/index.php?page=2965
- Rosa Brooks, ‘Our Torturer-in-Chief’, LA Times, September 22, 2006, http://www.latimes.com/news/printedition/opinion/la-oe-brooks22sep22,1,64734.column
- Michael J. Sniffen, ‘Gonzales Cautions Judges on Interfering’, Associated Press, September 29, 2006 (reposted by the Washington Post), http://www.washingtonpost.com/wp-dyn/content/article/2006/09/29/AR2006092900511.html
- Jim Lobe, ‘Groups Unanimously Assail New Detention Law’, Inter Press Service, September 29, 2006, http://www.ipsnews.net/news.asp?idnews=34943
- 'Center for Constitutional Rights Condemns Defeat of Specter Amendment to Preserve Habeas', September 30, 2006, http://ccr-ny.org/v2/reports/report.asp?ObjID=3in4Yl9iUG&Content=848
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