Where the Military Commissions Act of 2006 Got It Wrong
By Chad A. B. Wilson
Published October 26, 2006, 9:47 am in Military / Foreign policy, Ethics, Morality, & Justice.
There are lots of new issues to discuss--Madonna's adoption, the building of a wall on our Mexican border, the GOP and the Iraq war--but I need to finish my discussion of the Military Commissions Act of 2006. In a previous column, I discussed the Act's defintions of "lawful" and "unlawful enemy combatants," but I didn't get a chance to go into what the bill actually does.
In some ways, the specifics of the bill are not the important part. I contend that it is the defintions themselves that are the most dangerous because they leave room for a final decision to be made by the President or Secretary of Defense or their appointees. If they decide that a person is an "unlawful enemy combatant," then he or she can be treated as such.
Now the thing that I failed to say yesterday is that the act only stipulates the following treatment for "alien unlawful enemy combatants," which means that only non-U.S. citizens can be treated this way. When I spoke of my fears of being labeled this way, I admit that wasn't considering the fact that I couldn't be treated as such becuase I AM a U.S. citizen.
But I'm sure if that really matters. When it comes to these definitions, it seems that there are no appeals or no recourse to defend oneself. Even having access to a lawyer can be tricky. Think of the cases of Khaled el-Masri, a German citizen, or Maher Arar, a Canadian citizen, who were both arrested and detained for long periods. They even claimed torture at the hands of "outsourced terror agencies." They were never charged, though, and they were eventually released after five months in el-Masri's case and ten months in Arar's. I guess they are "alien unlawful combatants," but they come close to being my neighbor, a non-U.S. citizen married to a U.S. citizen, and the couple has two kids and a great life. Now the guy is Palestinian, but he's not a terrorist, I can tell you that. But what if a mistake was made, and he was arrested and detained as an unlawful enemy combatant? Just what would happen to him?
Who May Be Tried?
Anyone who is defined as an "alien unlawful enemy combatant" who has committed any of a number of sins, I mean crimes, as stipulated in the document: murder of civilians, taking hostages, using civilians as shields, or committing torture, among other things. The only provisions that may be odd here is anyone who is tried for "PROVIDING MATERIAL SUPPORT FOR TERRORISM" or "WRONGFULLY AIDING THE ENEMY." But even these may be okay.
Military Commissions
First of a all, an "alien unlawful enemy combatant" will be tried by a military commission composed of at least five commissioned officers. He or she will be represented by at least one counsel or may represent him or herself. The part that is different is that there is no judge or jury present. This doesn't seem like a big deal until oversight comes into play.
Appeals
But appeals ARE allowed, at least for convictions by the Military Commission. First, there is the Court of Military Commission review. After that, there is the United States Court of Appeals for the District of Columbia Circuit, and then it's on to the Supreme Court, to which the defendant has the ability to appeal, as well. So this is a good thing.
The Geneva Convention
One part that is not so clear, and to which we must consult experts in law, is that an appeal to the Geneva Convention for rights is specifically prohibitied. According to the act, "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." What this seems to mean is that an "alien unlawful enemy combatant" cannot be considered a prisoner of war, and therefore, does not have the rights guaranteed to prisoners of war. Initially, this really bothers me, but not after some investigation into the specifics. The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 take the place of the Geneva Conventions regarding "alien unlawful enemy combatants." Again, this worries me, except that I can't find any specific guidelines as to how the two differ. Each of these three guidelines says that torture is unlawful, but the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 describe what is allowed and not allowed in more detail. Perhaps they are less restrictive simply because they are less vague. But this is okay.
Habeas Corpus
This one is not okay, however, and it ruins the entire act for me. It's the big one because it is specifically disregarded in this new act: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
But habeas corpus is specifically allowed in the Constitution: "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." It's one of those bulwarks or safeguards of the public, although many people may be unsure of its exact meaning. Basically, a writ of habeas corpus allows someone to appeal their detention. It is a civil petition that is filed to protest a person's detainment. If a person is in prison, for example, he or she may file a writ of habeas corpus to have a civil review of his or her detainment. It's what allows us to NOT be imprisoned illegally or without cause. It's a check, and an important one.
But notice that the Constitution specifically allows for its suspension "when in Cases of Rebellion or Invasion the public Safety may require it." That's what the government has done here. They have said that we are in a dangerous time and the writ of habeas corpus must not apply to "alien unlawful enemy combatants." This is what upsets me because it says that these safeguards to unlawful detention do not apply to people designated as "alien unlawful enemy combatants," and then we must look at the definition of this very term. It's tricky, and the combination of the defintion along with the effects can lead to one sticky situation.
I object to the suspension of habeas corpus here and elsewhere. Habeas corpus has been suspended before, of course, and it was never really in the public's interest to do so. The government always had a good reason for doing it, but it was never good enough in hindsight. Therefore, I object to this one here, as well. Even if it may appear that it is a good idea to detain people for indefinite periods of time, we cannot allow this to happen. So I don't object to most of this Military Commissions Act of 2006. What I object to is the ability it leaves for our government to designate people as X and then treat them as X without recourse to appeal their imprisonment. I'm not talking about appealing convictions, for the act allows for such. What it doesn't allow for is the appeal before the imprisonment itself.
So I will not go as far as Olbermann (see a previous column for that info) to declare our government deceitful. But I don't like the dismantling of habeas corpus one bit. It should NOT be considered here, even if its suspension seems like a guard for our safety. It is the writ of habeas corpus that is meant to guard our safety, and I trust the Constitution for that, not our current government.
Comments & Trackbacks
No Comments/Trackbacks for this post yet...
This post has 4 feedbacks awaiting moderation...
Leave a comment