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Originally Published: 10/4/2006


By The Issue Wonk



On September 28, 2006 Congress passed Senate Bill 3930, the Military Commissions Act of 2006. (See Senate votes. See House votes.) (The good news is that they failed to pass authorization for warrantless surveillance.) The so-called antiterrorism bill will make American troops less safe and do lasting damage to our nation, while doing nothing to protect us from terrorists. Here are the provisions and the problems with each:


Enemy Combatants.  The bill establishes a legal system to prosecute an “unlawful enemy combatant,” who is defined as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents.” The obvious problem is that the term “enemy combatant” is overly broad and could subject legal residents of the United States, including citizens, as well as foreign citizens living in their own countries, to arrest and indefinite detention with no hope of appeal. The bill gives the president, or his “designee,” the power to label anyone an “enemy combatant.”


War Crimes.  The bill outlines specific war crimes, including torture, cruel or inhuman treatment, murder, mutilation or maiming, rape and biological experiences and provides extensive definitions of each crime. It allows the president to “interpret the meaning and application” of the Geneva Conventions applied to interrogation techniques. This provision is intended to allow him to authorize methods that might otherwise be seen as illegal by international courts. The president’s decision of what abuse methods are permissible may remain secret -- there’s no requirement it be published. The bill also immunizes U.S. officials from prosecution for cruel, inhumane, or degrading treatment of detainees who the military and CIA captured before the end of last year.


Habeas Corpus.  The bill bars detainees in U.S. military prisons from challenging their imprisonment.


Judicial Review.  Anticipating court challenges, the bill includes provisions that the courts have no power to review any aspect of this new system, except verdicts by military tribunals. It limits appeals and bars legal actions based on the Geneva Conventions.


Rules of Evidence.  A defendant is allowed to examine and respond to any evidence given to a jury. If that evidence is classified, an unclassified summary can be provided. When the government wants to protect classified information and an unclassified substitute is not available, the government can opt to drop the charges. The President is not required to release the combatant if the charges are dropped. Coerced evidence and hearsay are permissible if a judge considers it reliable. Coercion is defined in a way that excepts anything done before the passage of the Act and anything else that the president chooses.


According to Smith:2


University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a “banana republic.” Yale Law School Dean Harold Koh said that “the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it’s not clear that most of the members understand what they’ve done.”


So, here’s the danger. You are a citizen at an anti-war rally, or a citizen who writes a letter to the editor complaining about the government, or a columnist for a newspaper who criticizes the government, etc. The president declares these activities to be “un-American” and you are picked up as an enemy combatant. As an enemy combatant, you cannot invoke your right to habeas corpus – you’re just stuck in the pokey. Then you are tortured, according to techniques approved by the president, until you confess to be aligned with al-Qaeda. You go before a military tribunal. They have no evidence against you other than your confession, so, in order to keep the case against you alive, they claim that they can’t release the evidence as it is a national secret. Depending on how the tribunal rules they can (a) find you guilty based on your confession and sentence you or (b) find that there’s not enough evidence to decide your innocence or guilt, and leave you locked up forever as an enemy combatant. Will this happen? Probably not. Could it happen? Absolutely.


So, let’s see which of the first 10 Amendments to the Constitution, the Bill of Rights, we still have.


Amendment I.  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Separation of Church and State: Perilously close to being gone, given Bush’s Faith-Based Initiatives.


Free Speech, Freedom of the Press, Peaceable Assembly: Chilled due to fear of being labeled an “enemy combatant.”


Petition the Government for Redress: Gone, if you’re labeled an “enemy combatant.”


Amendment II.  A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.


We’re okay here. We’ve all still got our guns.


Amendment III.  No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.


If not allowing soldiers to be quartered in your house means that you are labeled an “enemy combatant,” then this right is gone.


Amendment IV.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Gone. Even though warrantless surveillance has not been approved by Congress, the president has admitted that he does it and has asserted that he will continue to do it.1


Amendment V.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Gone, if you’re labeled an “enemy combatant.”


Amendment VI.  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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Gone, if you’re labeled an “enemy combatant.”


Amendment VII.  In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.


Gone, if you’re labeled an “enemy combatant.”


Amendment VIII.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Gone. Indefinite detention without being convicted of a crime, I would think, could be considered “excessive bail” or “excessive fines.” Since torture is now allowed, “cruel and unusual punishments” can be inflicted.


Amendment IX.  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Since most of these rights are either gone or being discouraged, I wouldn’t rely on still having any other rights.


Amendment X.  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


Well, I guess this is still intact. Unless you’re designed an “enemy combatant.”


Update:  October 17, 2006.  President Bush finally signed the bill.



1  Democracy Now. 12-19-05. An Impeachable Offense? Bush Admits Authorizing NSA to Eavesdrop on American Without Court Approval.


2  Smith, R. Jeffrey. Many Rights in U.S. Legal System Absent in New Bill. The Washington Post, September 29, 2006.



© The Issue Wonk, 2006


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