Halfway Measures on Bush's Tribunals
By Robert Parry
Consortium News
Tuesday 18 September 2007
In a memorable scene from Michael Moore's "Fahrenheit 9/11,"
Rep. John Conyers explains how it was that Congress passed the USA Patriot Act
without knowing many of its provisions. "Sit down, my son," the
courtly Michigan Democrat said. "We don't read most of the bills."
That reality does not appear to have changed much. In back-to-back years, Congress
rushed through two sweeping pieces of legislation - the Military Commissions
Act of 2006 and the Protect America Act of 2007 - without a full understanding
of the powers being granted to President George W. Bush.
Now, the U.S. Senate is expected to consider legislation scrapping one part
of the 2006 law, its denial of habeas corpus - the ancient protection
against arbitrary arrests - to foreigners whom Bush has designated "unlawful
enemy combatants."
The lead New York Times editorial on Sept. 17 praised this effort to "reverse
one of the worst aspects of the 2006 law" that "established military
tribunals to try any foreigner that Mr. Bush labels an illegal combatant."
But the Times editors - like many members of Congress - don't
appear to have read the law through to the end.
If they had, they would know that the Military Commissions Act creates a parallel
legal system not limited to foreigners. The law could put "any person,"
including those "in breach of an allegiance or duty to the United States"
before a military tribunal if the person "knowingly and intentionally
aids an enemy of the United States."
Who has "an allegiance or duty to the United States" if not an
American citizen? That provision would not presumably apply to Osama bin Laden
or al-Qaeda, nor would it apply generally to foreigners.
This section of the law appears to be singling out American citizens who are
deemed (by the Bush administration) enemy fellow travelers. It seeks to put
them inside Bush's "star chamber" proceedings if they are
alleged to aid and abet foreign enemies.
"Any person is punishable as a principal under this chapter who commits
an offense punishable by this chapter, or aids, abets, counsels, commands, or
procures its commission," according to the law, passed by the Republican-controlled
Congress in September 2006 and signed by Bush on Oct. 17, 2006.
[To see an excerpt from the "any person" section of the law, click
here. To read the entire law, click here.]
Court Stripping
The military commissions also go beyond covering violations of the laws of
war. The tribunals, with truncated rights for defendants, apply as well to spying,
providing "material support" to alleged terrorist groups and other
offenses that have been routinely handled within the traditional U.S. legal
system.
Indeed, it appears the goal of these "any person" provisions is
to allow for the detention of perceived "fifth columnists" or other
domestic enemies of the state at a time of crisis, such as during some future
terrorist incident.
Though it's true the Military Commissions Act specifically strips non-U.S.
citizens of habeas corpus, the law implicitly denies everyone who gets swept
into Bush's new legal system the opportunity to challenge their incarceration.
Once inside, the law prohibits detainees from appealing to the traditional
U.S. courts until the tribunals have fully prosecuted and sentenced each defendant,
a process that could last indefinitely since there are no timetables for the
tribunal process to play out.
The law states that once a person is detained, "no court, justice, or
judge shall have jurisdiction to hear or consider any claim or cause of action
whatsoever ... relating to the prosecution, trial, or judgment of a military
commission under this chapter, including challenges to the lawfulness of procedures
of military commissions."
That court-stripping provision - barring "any claim or cause of
action whatsoever" - would seem to deny detainees a wide variety
of constitutional rights - such as a speedy trial, the right to reasonable
bail and the ban on "cruel and unusual punishment." If a person
can't file a motion with a court, constitutional rights can't be
asserted.
By putting detainees outside the traditional U.S. constitutional process, Bush's
system particularly makes a mockery of the Sixth Amendment, which reads:
"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 ... and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him;
[and] to have compulsory process for obtaining witnesses."
By contrast, in Bush's system, there are no guarantees of either a speedy
or a public trial. Secrecy dominates in a process run by U.S. military officers
whose careers depend on the favor of the Commander in Chief.
Under the 2006 law, the military judge "may close to the public all or
a portion of the proceedings" if he deems that the evidence must be kept
secret for national security reasons. Those concerns can be conveyed to the
judge through ex parte - or one-sided - communications from the
prosecutor or a government representative.
The judge also can exclude the accused from the trial if there are safety concerns
or if the defendant is disruptive. Plus, the judge can admit evidence obtained
through coercion if he determines it "possesses sufficient probative value"
and "the interests of justice would best be served by admission of the
statement into evidence."
Secret Evidence
The law permits, too, the introduction of secret evidence "while protecting
from disclosure the sources, methods, or activities by which the United States
acquired the evidence if the military judge finds that ... the evidence is reliable."
During trial, the prosecutor would have the additional right to assert a "national
security privilege" that could stop "the examination of any witness,"
presumably by the defense if the questioning touched on any sensitive matter.
Even if an appeal could get through to the civilian courts, it might take years
before the U.S. Supreme Court addresses the detentions and - given the
increasingly right-wing make-up of the Court - there would be no assurance
that the justices wouldn't endorse the law's extraordinary powers.
In its editorial, the Times takes note of the law's "kangaroo court"
provisions and recognizes that the current legislative fixes don't deal
with these concerns. "All of those issues must be addressed, speedily,
by Congress, but restoring habeas corpus would be a good first step,"
the editorial said.
The most prominent bill, sponsored by Sens. Patrick Leahy, D-Vermont, and Arlen
Specter, R-Pennsylvania, limits itself to deleting the Military Commissions
Act's specific denial of habeas corpus rights to non-U.S. citizens.
As the Times noted, passage of the Leahy-Specter bill would restore some legal
balance to the process. By reinstating habeas corpus, Congress would make it
harder for the Executive to prevail in the courts since the courts normally
take into account congressional intent when weighing a legal appeal.
But the Leahy-Specter bill would leave in place Bush's unprecedented
parallel legal system that now resides outside the American constitutional structure.
It's also unclear if Congress will even agree to something as limited
as restoring habeas corpus, a principle in English law that dates back to the
Magna Carta of 1215 and a right that the Founders considered so important that
they embedded it in the U.S. Constitution in 1787.
Surely, if the debate takes place, supporters of the Leahy-Specter bill will
be accused of caring more about the rights of Islamic terrorists than the security
of the American people. That's how the debate was framed in September 2006,
leading 65 senators and 250 House members to vote for Bush's bill in the weeks
before the congressional elections.
"The [Bush] administration's disinformation machine portrayed the
debate as a fight between tough-minded conservatives who wanted to defeat terrorism
and addled liberals who would coddle the worst kinds of criminals," the
Times recalled.
But the Times noted that many traditional conservatives object to the trampling
of the Constitution just as many liberals do. But the fear of getting labeled
"soft on terror" still pervades the ranks of congressional Democrats.
Leahy, for one, has privately fumed over the unwillingness of Democratic Senate
leaders to bring his proposal to the floor. There also is no reason to believe
that Congress has any inclination to go further and revamp Bush's extra-constitutional
tribunal system more thoroughly.
In the event of another terrorist incident or a similar national crisis, there's
also little reason to think that Bush won't interpret every legal ambiguity
in the Military Commissions Act as granting him the broadest possible powers.
--------
Robert Parry broke many of the Iran-Contra stories in the 1980s for
the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous
Presidency of George W. Bush, was written with two of his sons, Sam and Nat,
and can be ordered at neckdeepbook.com. His two previous books, Secrecy &
Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History:
Contras, Cocaine, the Press & 'Project Truth' are also available there.
Or go to Amazon.com.
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