Thursday, October 26, 2006

Under New Law, Americans Must Guard Against Abuse of Power

Under New Law, Americans Must Guard Against Abuse of Power

By Phillis D. Engelbert and Lily Jarman-Reisch
t r u t h o u t | Perspective

Wednesday 25 October 2006

Late last month, the House and Senate voted to approve Military Commissions Act (MCA) - a bill that undermines several tenets of the US Constitution and international law. On behalf of the board of directors of Michigan Peaceworks, we are writing to express our alarm and dismay at the passage of this legislation - and in particular at the "yes" votes by Senator Debbie Stabenow and area congressmen Joe Schwarz and Mike Rogers. We urge everyone to learn the full scope and impact of this hastily approved bill and to remain vigilant against excesses in its implementation.

The MCA is so radical and sweeping that it could change the way high school civics texts are written. Gone are guarantees that individuals accused of crimes can know the charges against them, challenge their detention and conditions of detention, receive a speedy trial, see the evidence against them, be represented by a lawyer of their choosing, be treated humanely, not have evidence introduced against them obtained through coercion, and be judged by an impartial person or persons.

Gone are the checks and balances that keep one branch of government (the executive) from gaining too much power at the expense of another (the judiciary). The US has long been looked upon as the standard-bearer of human rights and due process around the world. If other countries now follow our lead, American citizens in foreign lands can expect be subjected to indefinite detention, in cruel conditions, without recourse or access to any sort of counsel or protection by international law.

The aspect of the MCA most troubling to legal scholars is its denial of habeas corpus - the right of a prisoner to challenge his or her detention as unlawful - to non-citizens designated "enemy combatants." Habeas corpus is a cornerstone of our Constitution (its suspension is allowed only in cases of invasion or insurrection - of which we have neither) and is an important recourse for those who have been wrongly imprisoned. Habeas allows, for instance, the wrongly imprisoned immigrant to argue that he is not the person the authorities are seeking, but that he happens to have a similar or same name as that person.

A related concern is the legislation's vague definition of "enemy combatant." An "unlawful enemy combatant" (as opposed to a "lawful" one - a member of a foreign army fighting the US) is defined as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States." The law gives the president discretion to determine who fits this description. There is nothing to stop him, for instance, from applying the label "enemy combatant" to a Muslim resident alien who donates money to a charity being investigated by the FBI - then imprisoning that person and keeping him in a legal limbo that may last a lifetime. There is also nothing in the law that explicitly exempts US citizens - for example, those who protest the president's war policy - from being called "enemy combatants."

Another concern with the MCA is that it does an end-run around Hamdan v. Rumsfeld (2006), in which the Supreme Court ruled against the military tribunals crafted by the Bush administration to try Guantanamo detainees. In Hamdan, the court also determined that all detainees deserve Geneva Convention protections. The MCA attempts to nullify the court's rulings by having Congress, rather than the president, authorize military tribunals and stating that protections guaranteed by international law do not apply to enemy combatants.

Legal experts have called the military tribunals a charade: the tribunals do not allow detainees to challenge the facts of their detention or hear and answer the charges against them. Instead, detainees are typically told to respond to vague charges of "associating" with terrorists. The MCA will have the effect of delaying hearings for Guantanamo detainees and increasing the likelihood that the detainees will spend life in prison or be given death sentences - despite many high-publicized studies concluding that vast majority of those rounded up and taken to Guantanamo are not al-Qaeda fighters.

The legislation gives the president unprecedented power to determine use of coercive techniques short of torture in interrogations and gives all US officials retroactive blanket immunity from charges of torture that may be brought against them. We can expect the continued use of water-boarding (near drowning), stress positions, religious and sexual humiliation, exposure to extreme cold and sleep deprivation among other techniques the administration has repeatedly denied constitute torture.

"It removes as many checks and balances as possible," stated Senator Patrick Leahy about this legislation in a recent television interview, "so that any president can basically set the law, determine what laws they'll follow and what laws they'll break and not have anybody be able to question them on it."

It is widely anticipated that the MCA will eventually be struck down as unconstitutional. That process, however, will take time. In the meantime, it is important that citizens act as a check and balance to the executive branch. It is up to us to protest abuses of due process at Guantanamo and any liberal sprinkling of the label "enemy combatant."

We must take a stand against torture. Amnesty International has launched "America I Believe In" - a campaign "to restore our traditional American values of justice, rule of law and human dignity." Learn about that campaign at and visit for additional suggestions. It's not too late to take our country back.

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