Power Strip

Last week, Congress passed legislation giving the president a blank check to wage his “war on terror.” The new law, known as the Military Commissions Act of 2006 (MCA), is rife with problems. It gives the president drag-net detention power, sets up a second-class system of military justice for non-citizens, and weakens the Geneva Convention's protections against torture and other abuse. But the most chilling aspect of the new law is its deliberate attempt to eliminate the federal courts' role as a check on executive illegality. Congress, in short, has not simply rewritten the law; it has undermined the judiciary's power to interpret it.

The MCA takes aim at habeas corpus, the Constitution's most fundamental safeguard of individual liberty, eliminating it for any non-citizen detained as an “enemy combatant.” What's more, the act defines an enemy combatant broadly, permitting the detention not only of those engaged in hostilities against the United States or its allies but also those who “purposefully and materially supported hostilities.” In addition, the MCA eliminates any other kind of court action, including suits to remedy a prisoner's torture or mistreatment.

The implications are breathtaking. Under the new law, the United States can snatch a person anywhere in the world, declare him an enemy combatant, and imprison him indefinitely without due process or trial on the grounds that he “supported” a terrorist organization, possibly by making donations to a charity he may not realize is a front for a terrorist group. The act also makes it easier for the government to outsource torture, as it did in the case of Maher Arar, who was rendered from J.F.K. International Airport in New York to Syria where he was brutally beaten and imprisoned in a cell the size of a coffin for ten months. Once the president designates a person an enemy combatant, the government never has to present any evidence or face habeas corpus review in the courts. Even torture by the U.S. government has no remedy under the MCA.

The intent of the MCA is unmistakable: to eliminate any restraints on presidential power, specifically by the courts. To understand why the administration sought its passage, we need only look briefly at the role the courts have played over the last five years.

Take Guantánamo, the post-9/11 era's most enduring symbol of executive lawlessness. The president has detained more than 700 individuals at Guantánamo; approximately 440 prisoners remain there; only ten have been charged with any crime. The rest have been imprisoned without charge, denied a fair opportunity to demonstrate their innocence, and subjected to coercive interrogations, even tortured.

Guantánamo was built on two legal constructs: first, that the detainees have no legal rights because they are unlawful enemy combatants; and second, that the detainees cannot access the federal courts because they are enemy aliens held outside the United States. Stripping the detainees of all rights and remedies transformed Guantánamo into a legal black hole. As a top U.K. minister recently put it, Guantánamo is a “shocking affront to the principles of democracy.”

Two years ago, in Rasul v. Bush, the Supreme Court began to restore the system of checks and balances, ruling that Guantánamo detainees have the right to challenge their detention in federal court by habeas corpus. After the ruling, attorneys began traveling to Guantánamo to pursue their clients' habeas petitions, and in the process provided something that had not existed before -- an alternative account of operations at the prison. It became apparent, for example, that the detainees were not “the worst of the worst,” as the government had contended, and that detainees were not treated humanely but instead subjected to torture and other mistreatment – abuses that were confirmed by FBI documents released under the Freedom of Information Act. (The administration obstructed the courts' implementation of Rasul, creating a sham process known as a Combatant Status Review Tribunal designed to rubber-stamp the president's previous conclusion that the prisoners were all “enemy combatants,” and denying detainees many of the rights that Rasul had offered them.)

In June, the Court intervened again in Hamdan v. Rumsfeld, this time to invalidate the president's jerry-rigged military commissions established to try the handful of Guantánamo detainees charged with war crimes. The Court struck down the trials because they denied basic due process, including a defendant's right to be present and to see the evidence against him. The Court also rejected the president's overarching claim that the detainees have no rights. Even alleged al Qaeda members, the Court found, are entitled at least to the protections of Common Article 3 of the Geneva Conventions, which not only prohibits unfair trials but also outlaws torture, cruel treatment, and “[o]utrages upon personal dignity.”

Together, Rasul and Hamdan affirm three important safeguards central to the rule of law: the right to challenge the lawfulness of detention, the right to a fair trial, and the right to be free of torture and other mistreatment. All three are the direct result of habeas corpus, which, as Justice O'Connor noted, protects the American system of checks and balances as well as personal freedom.

Enter Congress. After the Supreme Court ruled in Hamdan that the president had exceeded the limits Congress had imposed on military commissions, President Bush demanded that Congress change the law -- by passing the MCA. Though improved, the new commissions under the MCA still lack key safeguards and permit coerced testimony through the introduction of hearsay summaries of evidence. Despite the efforts of Senators John Warner, John McCain, and Lindsey Graham, the compromise they worked out in the MCA gives the president the exclusive power to interpret the Geneva Conventions, makes the Conventions unenforceable in court, and limits criminal liability under the War Crimes Act for breaches of the Conventions. As a result, the president will be emboldened to resume his program of locking up suspected terrorists in secret CIA-prisons and engaging in “enhanced” interrogation techniques like hypothermia, prolonged sleep deprivation, and long time standing, where a prisoner must stand for 40 hours while handcuffed with his feet shackled to an eyebolt in the floor.

Fortunately, the Constitution's Suspension Clause imposes limits on Congress's ability to strip review of these issues from the federal courts. As the Supreme Court has made clear, habeas corpus must remain available to aliens and citizens held by the United States. Only a true emergency, and not a desire to evade judicial scrutiny, can provide a lawful basis for suspending the Great Writ. Whether the Supreme Court invalidates the MCA's habeas repeal or its other provisions remains to be seen. But one thing is for certain: the Court will have another say.

Jonathan Hafetz directs litigation for the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law and is the author of a forthcoming book on post-9/11 detentions, to be published by NYU press.

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