Military Commissions Act of 2006
October 23rd, 2006
I doubt that most Americans realize that the Military Commissions Act of 2006 has already been signed into law. I, for one, did not until I listened to Keith Olbermann’s special commentary on the subject, which I posted earlier. I decided to look more into what has happened and what follows is some of what I found. I am not a lawyer, but here’s the way I see things.
In 2004 a case was brought before the US Supreme Court, Hamdi v. Rumsfeld. The case involved a US citizen who was captured in Afghanistan and was being held as an enemy combatant in Guantánamo Bay, Cuba. The Supreme Court’s decision on June 28, 2004 stated
We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
That sounds good, right? Any US citizen held as an enemy combatant may still use habeas corpus as a legal means of challenging the legitimacy of their custody.
In June 2006, another ruling was handed down in a case before the US Supreme Court, Hamdan v. Rumsfeld. Hamdan was a driver for an Afghanistan agricultural project created by Osama Bin Laden, captured in Afghanistan, and held in Guantánamo Bay, Cuba. This time the Supreme Court concluded
that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions.
In essence, the Supreme Court maintained that they had jurisdiction over detainees in Guantánamo Bay, Cuba and that the military commissions created by the Bush administration were not legitimate. They also cite the Geneva Conventions in support of their ruling. Interesting… On a side note, the lawyer assigned to the case, Lt. Cmdr. Charles Swift, was passed over for promotion and forced into retirement according to the “up or out” rule.
The Military Commissions Act passed in both the Senate (Sep 28, 2006) and the House of Representatives (Sep 29, 2006) and signed by George W. Bush on October 17, 2006. So, where does that leave us today? Anthony D. Romero, Executive Director for the ACLU states
With his signature, President Bush enacts a law that is both unconstitutional and un-American. This president will be remembered as the one who undercut the hallmark of habeas in the name of the war on terror. Nothing separates America more from our enemies than our commitment to fairness and the rule of law, but the bill signed today is an historic break because it turns Guantánamo Bay and other U.S. facilities into legal no-man’s-lands.
The president can now – with the approval of Congress – indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. Nothing could be further from the American values we all hold in our hearts than the Military Commissions Act.
Additionally, Senator Patrick Leahy of Vermont states
Passing laws that remove the few checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin Laden and al Qaeda. Authorizing indefinite detention of anybody the Government designates, without any proceeding and without any recourse—is what our worst critics claim the United States would do, not what American values, traditions and our rule of law would have us do.
This is not just a bad bill, this is a dangerous bill.
Bush is quoted as saying that in the future, the questions asked about this time and of Americans who lived through it will be “narrowed and few: Did this generation of Americans take the threat seriously? And did we do what it takes to defeat that threat?”
I do not feel that the erosion of our morals and freedoms is worth the illusion of security offered by this administration, or any future administration. I can’t believe that there is a single American out there who believes that we are truly safe, despite all of the indignities and reductions in freedom that we have endured. In everything that we do, in every law that we pass, we present to the world a representation of what democracy and freedom stand for. Do we really want to stand for rights given solely to Americans and refused to others? Are we so arrogant to think that we’re that special?
One of the commentators on Keith Olbermann described the reaction by the people of the US to the Military Commissions Act of 2006 as “a collective yawn.” I worry that our complacency with weakening the freedoms expressly outlined in the Constitution of the United States of America (Article I, Section 9) and the Bill of Rights (Amendment VIII) will require future generations not to ask the questions Bush states, but instead for them to ask “How could you let this happen?”
Perhaps this event and the ones that follow will be a wake-up call to American patriots for, as Tyler Durden said, “Only after disaster can we be resurrected.”
Some other interesting references:
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