Government Relations

The Military Commissions Act: Be Afraid, Very Afraid

In June of 2006 the United States Supreme Court in the landmark case of Hamdan v. Rumsfeld struck down the President’s method of prosecuting Unlawful Enemy Combatants, largely the Guantanamo detainee’s.  The Supreme Court’s decision held the President did not have the authority to create rules for prosecuting such detainees, only Congress had such authority.  As a result Congress proposed the Military Commissions Act (MCA).

On September 27, 2006, just days before Congress broke for the November 2006 elections, the Republican controlled House voted to pass the Military Commissions Act of 2006.  The vote passed with 219 Republicans and 34 Democrats supporting this law that allows the use of statements obtained through extreme methods of interrogation for “enemy combatants” and removed the long standing rule allowing detainees to challenge their detention, known as “Habeas Corpus”.  The Senate passed this act the next day and it was signed into law by the President in mid-October.

The MCA has substantially changed the law effecting both citizens and non-citizens.  This new law removes what is known as “Habeas Corpus”.  Without going into a history lesson taking you back eight hundred years to the days of the old British monarchy and a document known as the Magna Carta, Habeas Corpus can best be explained as the legal tool allowing someone who is held in custody to get a Judge to review the decision keeping them in jail.  Under the MCA an individual who believes he is detained unlawfully has no way to fight this detention.  For example, if the President or the Secretary of Defense designate you as an Unlawful Enemy Combatant via a Status Review Tribunal you will be tried in a military court and will not be granted the international protection of the Geneva Convention nor will you be able to ever appeal being designated.  Further if the evidence against you is deemed classified it can be used against you but you will not be able to see the actual classified evidence.   A possible punishment under the MCA prosecution is the death penalty.

Many members of Congress describe the MCA as applying only to those caught on the open battle field fighting Americans.  This is not true.  While only non-citizens will be tried under the military tribunal system, the MCA can just as easily apply to an American citizen picked up off the streets of New York if she is designated as an Unlawful Enemy Combatant.  The term Unlawful Enemy Combatant is not defined in the MCA and nowhere does the statute specify that only non-citizens can be labeled as such.  Therefore a U.S. citizen can be held in detention indefinitely without ever being tried and without a method of challenging this decision.  The fundamental and centuries old rule of Habeas Corpus once removed for one part of our society can soon be removed for the rest of us.

Much has been said about the alleged torture of detainees for the purpose of obtaining confessions.  An effort was made to add language into the MCA that clearly indicates statements of the accused obtained by torture cannot be used against him.  However the term torture does not include all forms of aggressive persuasion such as stress positions, water boarding, and sleep deprivation.  If the military judge finds such statements reliable enough they can be used against the detainee.  No Habeas Corpus and very limited non-military review by a court.

In addition to establishing rules that undermine our long American tradition of due process for the accused now it seems there is an attempt to dissuade attorneys from representing Guantanamo detainees.  Deputy assistant secretary of defense of detainee affairs Cully Stimson recently stated how shocked he was that large legal firms are participating in the defense of Guantanamo detainees.  He further suggested the clients of those firms should reconsider using firms or lawyers who have opted to represent detainees.  So the person in this administration assigned to look after the rights of detainees is complaining that too many good lawyers are fighting to defend the rights of detainees.  While the Pentagon has repudiated such statements it is clear when such statements are read together with the MCA, Guantanamo detainees are guilty until proven innocent.  All Americans should be concerned that such sentiments may spill over the shores of Guantanamo into our own local law enforcement and justice systems.

There is now an opportunity to undo the laws that have taken our nation farther away from the standards of justice and humanity, not to mention the standards of the international community.  This opportunity can be realized by reaching out to your local Congressional and Senate representatives and calling for a bill that would amend the MCA and bring back the rule of Habeas Corpus.

Author: Khurrum Wahid