Halfway Measures on Bush's Tribunals
In a memorable scene from Michael Moore’s “Fahrenheit 9/11,” Rep. John Conyers explains how it was that Congress passed the USA Patriot Act without knowing many of its provisions. “Sit down, my son,” the courtly Michigan Democrat said. “We don’t read most of the bills.”
That reality does not appear to have changed much. In back-to-back years, Congress rushed through two sweeping pieces of legislation – the Military Commissions Act of 2006 and the Protect America Act of 2007 – without a full understanding of the powers being granted to President George W. Bush.
Now, the U.S. Senate is expected to consider legislation scrapping one part of the 2006 law, its denial of habeas corpus – the ancient protection against arbitrary arrests – to foreigners whom Bush has designated “unlawful enemy combatants.”
The lead New York Times editorial on Sept. 17 praised this effort to “reverse one of the worst aspects of the 2006 law” that “established military tribunals to try any foreigner that Mr. Bush labels an illegal combatant.” But the Times editors – like many members of Congress – don’t appear to have read the law through to the end.
If they had, they would know that the Military Commissions Act creates a parallel legal system not limited to foreigners. The law could put “any person,” including those “in breach of an allegiance or duty to the United States” before a military tribunal if the person “knowingly and intentionally aids an enemy of the United States.”
Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreigners.
This section of the law appears to be singling out American citizens who are deemed (by the Bush administration) enemy fellow travelers. It seeks to put them inside Bush’s “star chamber” proceedings if they are alleged to aid and abet foreign enemies.
“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,” according to the law, passed by the Republican-controlled Congress in September 2006 and signed by Bush on Oct. 17, 2006.
[To see an excerpt from the “any person” section of the law, click here. To read the entire law, click here.]
The military commissions also go beyond covering violations of the laws of war. The tribunals, with truncated rights for defendants, apply as well to spying, providing “material support” to alleged terrorist groups and other offenses that have been routinely handled within the traditional U.S. legal system.
Indeed, it appears the goal of these “any person” provisions is to allow for the detention of perceived “fifth columnists” or other domestic enemies of the state at a time of crisis, such as during some future terrorist incident.
Though it’s true the Military Commissions Act specifically strips non-U.S. citizens of habeas corpus, the law implicitly denies everyone who gets swept into Bush’s new legal system the opportunity to challenge their incarceration.
Once inside, the law prohibits detainees from appealing to the traditional U.S. courts until the tribunals have fully prosecuted and sentenced each defendant, a process that could last indefinitely since there are no timetables for the tribunal process to play out.
The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny detainees a wide variety of constitutional rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment.” If a person can’t file a motion with a court, constitutional rights can’t be asserted.
By putting detainees outside the traditional U.S. constitutional process, Bush’s system particularly makes a mockery of the Sixth Amendment, which reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”
By contrast, in Bush’s system, there are no guarantees of either a speedy or a public trial. Secrecy dominates in a process run by U.S. military officers whose careers depend on the favor of the Commander in Chief.
Under the 2006 law, the military judge “may close to the public all or a portion of the proceedings” if he deems that the evidence must be kept secret for national security reasons. Those concerns can be conveyed to the judge through ex parte – or one-sided – communications from the prosecutor or a government representative.
The judge also can exclude the accused from the trial if there are safety concerns or if the defendant is disruptive. Plus, the judge can admit evidence obtained through coercion if he determines it “possesses sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.”
The law permits, too, the introduction of secret evidence “while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that ... the evidence is reliable.”
During trial, the prosecutor would have the additional right to assert a “national security privilege” that could stop “the examination of any witness,” presumably by the defense if the questioning touched on any sensitive matter.
Even if an appeal could get through to the civilian courts, it might take years before the U.S. Supreme Court addresses the detentions and – given the increasingly right-wing make-up of the Court – there would be no assurance that the justices wouldn’t endorse the law’s extraordinary powers.
In its editorial, the Times takes note of the law’s “kangaroo court” provisions and recognizes that the current legislative fixes don’t deal with these concerns. “All of those issues must be addressed, speedily, by Congress, but restoring habeas corpus would be a good first step,” the editorial said.
The most prominent bill, sponsored by Sens. Patrick Leahy, D-Vermont, and Arlen Specter, R-Pennsylvania, limits itself to deleting the Military Commissions Act’s specific denial of habeas corpus rights to non-U.S. citizens.
As the Times noted, passage of the Leahy-Specter bill would restore some legal balance to the process. By reinstating habeas corpus, Congress would make it harder for the Executive to prevail in the courts since the courts normally take into account congressional intent when weighing a legal appeal.
But the Leahy-Specter bill would leave in place Bush’s unprecedented parallel legal system that now resides outside the American constitutional structure.
It’s also unclear if Congress will even agree to something as limited as restoring habeas corpus, a principle in English law that dates back to the Magna Carta of 1215 and a right that the Founders considered so important that they embedded it in the U.S. Constitution in 1787.
Surely, if the debate takes place, supporters of the Leahy-Specter bill will be accused of caring more about the rights of Islamic terrorists than the security of the American people. That's how the debate was framed in September 2006, leading 65 senators and 250 House members to vote for Bush's bill in the weeks before the congressional elections.
“The [Bush] administration’s disinformation machine portrayed the debate as a fight between tough-minded conservatives who wanted to defeat terrorism and addled liberals who would coddle the worst kinds of criminals,” the Times recalled.
But the Times noted that many traditional conservatives object to the trampling of the Constitution just as many liberals do. But the fear of getting labeled “soft on terror” still pervades the ranks of congressional Democrats.
Leahy, for one, has privately fumed over the unwillingness of Democratic Senate leaders to bring his proposal to the floor. There also is no reason to believe that Congress has any inclination to go further and revamp Bush’s extra-constitutional tribunal system more thoroughly.
In the event of another terrorist incident or a similar national crisis, there’s also little reason to think that Bush won’t interpret every legal ambiguity in the Military Commissions Act as granting him the broadest possible powers.
[For more on constitutional implications of the Military Commissions Act. see our new book, Neck Deep: The Disastrous Presidency of George W. Bush.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
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