How does the Military Commissions Act of 2006 Challenge the Constitution?
Today is a historic day. By a vote of 65-34, the Senate passed the S3930 - Military Commissions Act of 2006. There are some minor variations with the House version, but it's a done deal. President Bush might sign it as soon as tomorrow. The following Democratic Party senators voted for it: Carper (Delaware), Johnson (South Dakota), Landrieu (Louisiana), Lautenberg (New Jersey), Lieberman (Connecticut), Menendez (New Jersey), Nelson (Florida), Nelson (Nebraska), Pryor (Arkansas), Rockefeller (West Virginia), Salazar (Colorado), and Stabenow (Michigan). On the Republican side, Senator Arlen Specter (R-PA) declared that the abrogation of habeas corpus would set our legal system back 900 years. Yet, he voted for it. Senator John McCain (R-AZ) worried that the President's power to dispense with the Geneva Convention might be dangerous to our troops who might be tortured by a foreign government that might do the same unto them. He voted for it as well.
I'd like to provide a summary, based on my understanding of the online comments I've read, of the effect of the Military Commissions Act of 2006 on the Constitution.
The Military Commissions Act:
- Authorizes the President to establish military commissions to prosecute detainees taken into US custody, either overseas or within the United States.
- Gives these commissions the power to determine punishment, up to and including death.
- Permits the use of testimony obtained by “cruel, inhuman or degrading treatment” if the torture took place before December 30, 2005, when it was banned by Congress.
- Permits hearsay evidence.
- Allows prosecutors to withhold from defendants evidence given to a jury, if it involves classified information, and substitute unclassified summaries.
- Strips US courts of jurisdiction over detainees, and strips detainees of their right to seek a writ of habeas corpus.
Writing in The Los Angeles Times, Yale Professor Bruce Ackerman points out a number of interesting details in the Act. The President can seize anybody who has "purposefully and materially supported hostilities against the United States.", such as contributing to a Muslim charity. This grants the president enormous power over citizens and legal residents. Senator Patrick Leahy, ranking member of the Senate Judiciary Committee, cited this scenario:
Imagine that you are a law-abiding, lawful permanent resident. In your spare time, you do charitable fundraising for international relief agencies that lend a hand in disasters. You send money abroad to those in need. You are selective in the charities you support, but you do not discriminate on grounds of religion. Then one day there is a knock on your door. The Government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involved. And perhaps an overzealous neighbor who saw a group of Muslims come to your house has reported “suspicious behavior.” You are brought in for questioning.
In that case, you could be dragged into this special military commission, with the rules of evidence outlined above. No Bill of Rights guarantees, such as trial by jury or the right to see all the evidence against you, apply. If you are a legal resident but not a United States citizen, you are cut off from habeas corpus relief as well. You can be withheld indefinitely, until the end of the war (which the President has said will last generations), upon the word of the President of the United States. You cannot sue in any United States civilian court. You may (or may not, at the President's discretion) be granted a Combatant Status Review Trial. You may rot in jail for the duration.
The American Civil Liberties Union points out other conflicts between this Act and the Constitution. The President gets to define what is or is not torture. According to Paragraph 8(a)(3), "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions". In addition, paragraph 8(a)(2) states that "no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions". In other words, the President can decide that the Geneva Convention Article 3 rules about torture don't apply.
I see two Constitutional problems here. Two clauses in Article I, Section 9, are violated. These are:
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.
No bill of attainder or ex post facto Law shall be passed.
We've already discussed the abrogation of habeas corpus. The Supreme Court, after the Civil War, in ex parte Milligan, ruled that when a civilian court exists, a US citizen cannot be tried in a military court, thus declaring that Lincoln's suspension of habeas corpus during the Civil War was unconstitutional. This 2006 Act allows the President to unilaterally abrogate (make null and void) the Geneva Convention, a treaty duly signed and committed law of the United States. This is unconstitutional. On its face, it's an ex post facto law.
By its plain language, the Act would deny all access to the courts of any alien “awaiting” a Government determination as to whether the alien is an enemy combatant, a determination that the Government would be free to delay as long as it liked—for years, for decades, for the length of the conflict which is so undefined and may last for decades or more.
I've already discussed Hamdan v Rumsfeld and Lincoln's suspension of habeas corpus during the Civil War. Please refer to these episodes. The Hamdan case, obviously, would never reach the civilian court. Lincoln's suspension of habeas corpus, which started in Maryland, at least addressed a defined threat to the Union - that Washington, DC would be surrounded by anti-Federal states.
We're left with government by the whim of the President of the United States and the Secretary of Defense. They're basically saying to everyone else, "trust us to do the right thing". Perhaps that's always the basis of government, but now we are stripped of the structure of checks and balances and separation of powers that has served us so well over the life of our republic. Let's hope they really can be trusted.