Are You the Enemy? under the Military Commissions Act of 2006, You Could Be. the Military Commissions Act of 2006 Allows the Executive Branch to Circumvent the Constitution, Endangering the Due Process of Law for All Americans, Not Just Terrorists

Article excerpt

On September 28, by a vote of 65-34, the Senate formally passed S. 3930, the Military Commissions Act of 2006 (MCA). The next day, the House of Representatives followed suit, passing the act by a vote of 250-170, and the affixing of the president's signature is now a formality.* This legislation is being highlighted by the Bush administration and most Republicans as a get-tough-on-terrorists measure that allows "alien unlawful enemy combatants ... [to be] subject to trial by military commissions" without the constitutional safeguards American citizens possess against illegal detainment and judicial railroading. Moreover, the bill allows "pain or suffering incidental to lawful sanctions" and "statements ... obtained by coercion"--think administration-approved methods of torture. We are being told that this action is preventive medicine to heal a world gone wrong. Question now: with this fix in place, what's the prognosis for the patient?

To begin answering that question, imagine the following scenario: your son Michael (or daughter Michelle) is in Florida on vacation: you speak to him via cellphone when he arrives at the airport and he is waiting in line to check his bags. You go to your local airport at arrival time to pick him up and he never appears. You call all the relevant authorities, including the police, FBI, CIA, and Homeland Security, and no one acknowledges having any information on your son. You go almost out of your mind; you go to the airport in Florida, interview security guards, concession stand workers, and cabbies. You learn nothing. After six months of never-ending worry gnawing at your gut, your son is dropped at your house. You learn that he was mistaken for a known terrorist by the CIA, flown to Cuba, and interrogated by being repeatedly put in a giant freezer and chilled to within an inch of his life and by being painfully deprived of sleep.

All of this would be allowed under the new act. Worse yet, imagine that the government never figures out that your son is innocent of all charges, and he never returns.

Habeas Corpus

In effect, one could say that the sick world is being given potent poison to bring about the cure sponsored by President Bush. Granted, the bill does not apparently treat citizens and foreigners equally, and the harshest treatment would generally be doled out to foreigners, but is the bill something we want to inflict on ourselves or others? Can we justify it by saying that the majority of those scooped up will be terrorist killers who deserve what they get? Let's look at what the bill would do.

A component of this bill that has attracted the attention of legal commentators and civil libertarians alike is that part which authorizes the president to suspend the right of habeas corpus. Habeas corpus is Latin for "you have the body." It grants prisoners the right to request from a judge the reasons for his incarceration. Article 1, Section 9 of the United States Constitution plainly states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Despite the Constitution's clear restriction on the suspension of this bulwark of liberty, the bill states:

   No court, justice, or judge
   shall have jurisdiction to
   hear or consider any claim
   or case of action, including
   an application for a writ of
   habeas corpus, pending
   on or filed after the date
   of enactment of this Act,
   against the United States
   or its agents, brought by or on behalf
   of any alien detained by the United
   States as an unlawful enemy combatant,
   relating to any aspect of the
   alien's detention, transfer, treatment,
   or conditions of confinement.


The act gives President Bush the power to define for American interrogators behavior that does or does not constitute torture, physical and mental pain, or serious coercion. …