From the noble American ideal of each human being
possessing “unalienable rights” as declared by the Founders 230
years ago amid the ringing of bells in Philadelphia, the United States
effectively rescinded that concept on a dreary fall day in Washington.
At a crimped ceremony in the East Room of the White
House, President George W. Bush signed the
Military Commissions Act of
2006 while sitting behind a sign reading “Protecting America.”
On the surface, the law sets standards for harsh
interrogations, prosecutions and executions of supposed terrorists and
other “unlawful combatants,” including al-Qaeda members who allegedly
conspired to murder nearly 3,000 people on Sept. 11, 2001.
“It is a rare occasion when a President can sign a
bill he knows will save American lives,” Bush said. “I have that
privilege this morning.”
But the new law does much more. In effect, it creates a
parallel “star chamber” system of criminal justice for anyone, including
an American citizen, who is suspected of engaging in, contributing to or
acting in support of violent acts directed against the U.S. government
or its allies anywhere on earth.
The law strips “unlawful combatants” and their
alleged fellow-travelers of the fundamental right of habeas corpus,
meaning that they can’t challenge their imprisonment in civilian courts,
at least not until after they are brought before a military tribunal,
tried under special secrecy rules and then sentenced.
One of the catches, however, is that with habeas
corpus suspended these suspects have no guarantee of a swift trial
and can theoretically be jailed indefinitely at the President’s
discretion. Given the endless nature of the “global war on terror,”
suspects could disappear forever into the dark hole of unlimited
executive authority, their fate hidden even from their families.
While incarcerated, the “unlawful combatants” and
their cohorts can be subjected to coercive interrogations with their
words used against them if and when they are brought to trial as long as
a military judge approves.
The military tribunals also could use secret
evidence to prosecute a wide range of “disloyal” American citizens as
well as anti-American non-citizens. The procedures are similar to “star
chambers,” which have been employed historically by absolute monarchs
and totalitarian states.
Even after the prosecutions are completed, the
President could keep details secret. While an annual report must be made
to Congress about the military tribunals, the President can conceal
whatever information he chooses in a classified annex.
When Congress was debating the military tribunal
law in September, some Americans were reassured to hear that the law
would apply to non-U.S. citizens, such as legal resident aliens and
foreigners. Indeed, the law does specify that “illegal enemy combatants”
must be aliens who allegedly have attacked U.S. targets or those of U.S.
But the law goes much further when it addresses
what can happen to people alleged to have given aid and comfort to
America’s enemies. According to the law’s language, even American
citizens who are accused of helping terrorists can be shunted into the
military tribunal system where they could languish indefinitely without
“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,” the law
“Any person subject to this chapter who,
in breach of an allegiance or duty to the United States, knowingly
and intentionally aids an enemy of the United States ... shall be punished as a military commission
… may direct. …
“Any person subject to this chapter who
with intent or reason to believe that it is to be used to the injury of
the United States or to the advantage of a foreign power,
collects or attempts to collect information by clandestine means or
while acting under false pretenses, for the purpose of conveying such
information to an enemy of the United States, or one of the
co-belligerents of the enemy, shall be punished by death or such
other punishment as a military commission … may direct. …
“Any person subject to this chapter who
conspires to commit one of the more substantive offenses triable by
military commission under this chapter, and who knowingly does any overt
act to effect the object of the conspiracy, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission … may direct, and, if death does
not result to any of the victims, by such punishment, other than death,
as a military commission … may direct.” [Emphases added]
In other words, a wide variety of alleged crimes,
including some specifically targeted at citizens with “an allegiance or
duty to the United States,” would be transferred from civilian courts to
military tribunals, where habeas corpus and other constitutional
rights would not apply.
Secrecy, not the principle of openness, dominates
these curious trials.
Under the military tribunal law, a 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
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
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.
The prosecution also would retain the right to
appeal any adverse ruling by the military judge to the U.S. Court of
Appeals in the District of Columbia. For the defense, however, the law
states that “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
Further, the law states “no person may invoke the
Geneva Conventions or any protocols thereto in any habeas corpus
or other civil action or proceeding to which the United States, or a
current or former officer, employee, member of the Armed Forces, or
other agent of the United States is a party as a source of rights in any
court of the United States or its States or territories.”
In effect, that provision amounts to a broad
amnesty for all U.S. officials, including President Bush and other
senior executives who may have authorized torture, murder or other
violations of human rights.
Beyond that amnesty provision, the law grants
President Bush the authority “to interpret the meaning and the
application of the Geneva Conventions.”
In signing the Military Commissions Act of 2006,
Bush remarked that “one of the terrorists believed to have planned the
9/11 attacks said he hoped the attacks would be the beginning of the end
of America.” Pausing for dramatic effect, Bush added, “He didn’t get his
Or, perhaps, the terrorist did.
Robert Parry broke many of the Iran-Contra
stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from
Watergate to Iraq, can be ordered at
secrecyandprivilege.com. It's also available at
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine,
the Press & 'Project Truth.'