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Military Commissions Act Headed for Supreme Court
Friday, 23 February 2007 16:14
by William Fisher

Following an appeals court’s divided decision upholding the constitutionality of the Military Commissions Act, opponents of the measure are racing the clock to file an appeal to the US Supreme Court and have it heard during the court’s current term.

A spokesperson for the Center for Constitutional Rights, the New York-based legal advocacy group that brought the original suit, told IPS it expected the appeal to be filed within the next two weeks and heard in the spring.

Earlier this week, a federal appeals court ruled 2-1 that detainees in US custody at Guantanamo Bay, Cuba, have no right to challenge their imprisonment in federal courts. The decision upheld the core of the Military Commissions Act (MCA), which was passed in a close vote last year by a Republican-controlled congress. The law stripped federal civilian courts of jurisdiction to hear habeas corpus petitions, giving President George W. Bush the right to indefinitely hold detainees outside the US without charges. The ruling affects some 400 prisoners still held at Guantanamo Bay, but could also establish a precedent affecting prisoners held by the US in Afghanistan and in CIA “secret prisons” in other countries.

The Court’s majority decision found that overruling the MCA would “defy the will of congress,” and asserted that habeas corpus does not apply to foreigners who are not in the US. It effectively ruled that the US naval base at Guantanamo Bay is a property leased by the US from Cuba, and that Cuba has sovereignty over it.

Two other appeals courts as well as the US Supreme Court have previously upheld Guantanamo detainees' rights to contest their incarceration in federal courts, first in Rasul v. Bush in 2004 and then in Hamdan v. Rumsfeld in 2006. But in its Hamdan decision, the high court also said that Congress could take further action on the issue. That action resulted in the Military Commissions Act, setting up special military trials for the detainees and stripping civilian courts of jurisdiction.

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In her appeals court dissent, Judge Judith W. Rogers wrote that habeas corpus may indeed apply to foreign nationals outside the US and that the lawmakers’ action had "exceeded the powers of Congress.” The US Constitution stipulates that habeas may be suspended only "when in cases of rebellion or invasion the public safety may require it." This is likely to be at the heart of the appeal to the Supreme Court.

The US Justice Department (DOJ) expressed approval of the ruling. It believes that foreign detainees enjoy no constitutional rights when they are detained in other countries.

Shayana Kadidal, managing attorney of the Center for Constitutional Rights (CCR) Guantanamo Global Justice Initiative, told IPS that the MCA “also allows for evidence obtained through torture, - a violation of the Geneva Conventions - and greatly widens the scope of who the president can label an ‘enemy combatant.’

The non-profit New York-based CCR represents many of the Guantanamo detainees and has played a central role in mobilizing legal representation for many others in custody.

Attorney Kadidal said, "This decision empowers the President to do whatever he wishes to prisoners without any legal limitation as long as he does it off shore, and encourages such notorious practices as extraordinary rendition and a contempt for international human rights law. Two of the three judges held that the President and the military may hold even innocent persons for as long they want without ever charging them so long as they are held offshore.”

He added, “The opinion relies on hypertechnical analysis to circumvent the Supreme Court’s clear mandate in their 2004 ruling: the detainees have the right to test the legality of their detentions in federal court. In every respect – the status of Guantanamo, the history of habeas corpus – the opinion ignores reality in favor of abstractions in order to come to the conclusion that even people the military admits are innocent and can be released have no right of access to the federal courts.”

Kadidal charged that the court majority “is wrong on history as well – there are a myriad of examples of habeas review being granted to persons the king had detained in distant garrisons or islands like Jersey to keep them out of the reach of the English courts. Moreover, on the majority’s reading, the common-law and constitutional rights to habeas have been frozen in time since 1789, and their opinion suggests that even US citizens could be kept in detention as long as the president holds them outside the territory of the United States.”

He said he expects that “this will be the third time the DC Circuit’s Guantanamo rulings are reversed by the Supreme Court.”

Other human rights and legal advocacy groups have also condemned the appeal court ruling. Typical is Mary Shaw of Amnesty International USA, who said, “The appellate court's ruling that Guantanamo detainees may not challenge their detention in U.S. courts is an affront to the American justice system which had always been known for its commitment to due process and the rule of law. Hopefully an appeal to the Supreme Court will overturn this shameful decision. In the meantime, Amnesty International urges Congress to act quickly to reverse the damage caused by the Military Commissions Act of 2006.”

The lower court’s decision came as congress adjourned for the President’s Day week-long recess, but congressional Democrats -- now a majority in both houses -- have already introduced legislation, co-sponsored by a powerful Republican, to amend the Military Commissions Act and restore habeas rights for detainees.

Senator Patrick J. Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, and that committee's senior Republican, Senator Arlen Specter of Pennsylvania, have introduced a bill that would restore habeas corpus rights.

Another bill was introduced recently by Senator Christopher J. Dodd of Connecticut, who is candidate for the Democratic presidential nomination. The Dodd measure would return habeas corpus rights to detainees and clarify other parts of the law.

The proposed legislation also drew plaudits from parts of the US religious community. For example, The National Religious Campaign Against Torture (NRCAT) announced its support for the Dodd and Leahy-Specter legislation.

"This legislation is urgently needed," said Jeanne Herrick-Stare, Chair of NRCAT

Coordinating Committee, "to not only restore the core elements of due process to our treatment of detainees, but also to restore the United States' role as a world leader in human rights.”

Congressional sources say the appeals court decision is likely to accelerate legislative action, but point to the possibility that President Bush would exercise his veto power. Bush believes detainee policy is a central tenet of his “global war on terror.” He has used his veto power only once in his six years in office – to nullify an act to permit wider federal funding for embryonic stem cell research.

Overturning a presidential veto requires the votes of two-thirds of Congress and, even with many Republicans currently trying to distance themselves from an unpopular president, it is unclear whether that many votes could be mustered.

More cynical observers say congressional Democrats would welcome a Bush veto, since that will leave the issue on the table for the 2008 elections.

But even if that’s true, we can expect some passionate oratory on this issue when congress returns next week.
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Comments (3)add comment

a guest said:

got this on my site
February 23, 2007 | url
Votes: +0

a guest said:

Moral Autism
That there is no outcry from the American people about issues surrounding the use of torture, extraordinary rendition, and abrogation of habeas corpus, must be taken as reliable evidence that we, as a people, are--quite simply--morally autistic. If those who don't profess to be followers of the Christ do not opposes these things, then it is just a matter of time until this law-of-the-jungle evil under color of law visits itself upon you. If those who do profess to be followers of the Christ do not oppose this patent, obvious, and genuine evil, then all you have to do to see what eternal law will be visited upon you is to simply pick up your favorite Bible and read what Christ said about who said "Lord, Lord" but who did not do the will of the Father. No matter how it is sliced, a society that doesn't stand up against such evils as these--for rational or for moral reasons--is a society upon which such evils will eventually used.
--Albert E. Potts
February 24, 2007
Votes: +0

a guest said:

Bipartisanship, torture and immunity
William Fisher's article is an excellent background summary of the Military Commissions Act, and the DC Circuit Court of Appeals recent 2-1 ruling upholding the constitutionality of one of the Act's several controversial provisions.

Over a well reasoned dissent, the majority ruled that Congress had validly exercised its power to define (actually, to eliminate) the jurisdiction of the federal courts, by prohibiting judges to review the legality of the confinement, and the conditions of confinement, of detainees at Guantanamo Bay. Habeas corpus, habeas corpse. One can only hope and pray that the one vote margin on the United States Supreme Court holds so this injustice can be reversed, and the the Dodd-Leahy-Specter legislation is enacted.

I must admit I'm completely baffled by the concluding part of this article. With respect to potential revision of the shameful MCA statute by the new Congress, Mr. Fisher writes: "Cynical observers say congressional Democrats would welcome a Bush veto, since that would leave the issue on the table for the 2008 election. But even if that's true, we can expect some impassioned oratory on this issue when Congress returns next week."

I for one have been waiting for oratory of any sort from the leadership of the Democratic Party condemning torture as an instrument of US foreign policy for the last five years. The silence is deafening.

Can anybody out there in cyberspace tell me how it was possible, when John Kerry and Little George held their first debate (an hour and a half dedicated solely to international and national security issues) in the 2004 Presidential campaign, that the words "torture", "abu Ghraib", and "Geneva Conventions" were never uttered, not even once, by either candidate or the moderator, Jim Lehrer of PBS?

How could it be that the media savvy DNC beltway brain trust persuaded the Kerry campaign to give George Bush a pass on torture? Bush in writing personally made the decision to junk the Geneva protections at Gitmo in February, 2002, based upon Alberto Gonzales' advice. How could the GOP - the political party that proudly promised to restore morality to the Oval Office in 2000 - wind up generating the homoerotic sadism of Abu Ghraib?

Indeed, what would Jesus say about water boarding, swathing thine enemies' faces in womens' undies, siccing dogs upon those in handcuffs, or the man-in-the-hood-on-the-box-with-the-electrodes-up-his ass?

When handed this "moral values issue" to them on a silver platter in 2004, the Democratic Party pretended not to notice. Poor Dick Durbin. He made a single speech on the Senate floor noting how some of the torture techniques in use in the US military prisons resembled those of the Gestapo and the KGB. The right wing media tore him to bits for making the comparison, and scarcely a colleague came to his aid.

I hope Mr. Fisher is right, but when torture was "on the table" as an election issue in 2004 and again in 2006, why did nobody talk about it then?

I can easily understand why the GOP wouldn't want to talk about such shocking brutality and sexual degeneracy taking place on George Bush's watch, to the outrage of much of the world. Why the Democrats have NOT spoken out thusfar with "impassioned oratory", or with even the blandest public criticism, about the torture and sexual humiliation of hundreds of Muslim men swept up into US military interrogation centers remains a mystery to me. Stark bipartisan issues of good and evil like this just don't come up very often.

On a more serious note (if that's possible), be sure keep an eye on the details within the details of the Dodd-Leahy-Specter bill and the behind scenes amendments.

One of the most vile provisions of the Military Commissions Act passed in 2006 was the creation of immunity from civil liability and apparent immunity from criminal prosecution for the torturers and the top policy decisionmakers who created the torture gulag. Mr. Rumsfeld, Gen. Miller, and others have some real, long term Pinochet problems in terms of international travel of course, but the Act as presently written gives a retroactive and prospective immunity bath to all of the individual wrongdoers under US law.

The MCA's grant of immunity is probably more important to more people in the real world that the scope of federal habeas corpus jurisdiction, the evidentiary use of hearsay statements obtained by torture, the due process right of detainees to talk in private to a defense lawyer, or any of the other reprehensible parts of this disgusting statute.

For some folks, it means they literally get away with murder.

February 27, 2007 | url
Votes: +0

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