The Military Commissions Act


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

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