Bush’s Brave New World of Torture

After President George W. Bush signed the controversial Military Commissions Act last week, the Justice Department wasted no time in using its new power to deny due process to the detainees swept up in the “war on terror.” Now that the bill which Sen. Patrick Leahy called “un-American” has become law, countless hours and dollars will be spent by public interest law organizations trying to undo its damage. In addition to challenges of the provisions that strip habeas corpus rights, we can expect constitutional challenges to the military commission procedures and amendments to the War Crimes Act.

The MCA is an unprecedented power grab by the executive branch. Among the Act’s worst features, it authorizes the president to detain, without charges, anyone whom he deems an unlawful enemy combatant. This includes U.S. citizens. It eliminates habeas corpus review for aliens. It also makes providing “material support” to terrorists punishable by military commission. And the military commissions' procedures allow for coerced testimony, the use of “sanitized classified information” -- where the source is not disclosed -- and trial for offenses not historically subject to trial by military commissions. (Terrorism is not historically a military offense; it's a crime.) Finally, by amending the War Crimes Act, it allows the president to authorize interrogation techniques that may nonetheless violate the Geneva Conventions and provides future and retroactive “defenses” for those who engage in or authorize those acts.

According to former Justice Department attorneyMarty Lederman, who opposed the Act, “the primary impact of the Military Commissions Act is” not to establish military commissions, but “to attempt to eliminate any judicial checks on the Executive's conduct of the conflict against al-Qaida.” Conservative law professor John Yoo, a supporter of the Act, writes, “In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.”

As Yoo himself admits, “The new law is, above all, a stinging rebuke to the Supreme Court.” Several Supreme Court decisions in the last two years struck down Rumsfeld’s previous military commissions and combatant status review tribunals, and granted Guantanamo alien detainees and citizens held in military custody in the U.S. the right to challenge their detentions via habeas corpus petitions in U.S. courts. The Bush administration argued against these positions (and indeed, the administration’s belief that Guantanamo was not subject to U.S. court jurisdiction was the main reason it chose that as its detention site).

Congress has now, in effect, struck down these Supreme Court decisions that struck down previous executive decisions and actions. What next?

Habeas For Some, Not All

The first challenges to the numerous provisions in the MCA will undoubtedly be about the habeas corpus-stripping provisions. Habeas corpus is the right to have a court determine the legality of one’s imprisonment before trial. The U.S. Constitution states that “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.”

Advocates of the MCA claim that habeas has never applied to foreign combatants captured on the battlefield. This claim begs the question: In the “war on terror,” how do you know where the battlefield is and how do you know who foreign combatants are? Habeas exists exactly for the purpose of challenging wrongful detentions and in the “war on terror,” it has already become abundantly clear that as many as 95 percent of the detentions may be wrongful.