Bush Signs Military Commissions Bill

President Bush today signed into law S. 3930, the Military Commissions Act of 2006.

The ACLU has issued a statement calling the law "one of the worst civil liberties measures ever enacted in American history."

"With his signature, President Bush enacts a law that is both unconstitutional and un-American. This president will be remembered as the one who undercut the hallmark of habeas in the name of the war on terror. Nothing separates America more from our enemies than our commitment to fairness and the rule of law, but the bill signed today is an historic break because it turns Guantánamo Bay and other U.S. facilities into legal no-man's-lands.

"The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. Nothing could be further from the American values we all hold in our hearts than the Military Commissions Act."

The ACLU took out a full page ad in today's Washington Post to protest the law. You can view it here (pdf).

Update: Andrew Cohen at The WaPo's Bench Conference says:

We know now what we didn't know then, back in the dark days of the autumn of 2001, and we still cannot get it right. After five years we now have a long track record of seeing what can, will and usually does go wrong when the administration acts unilaterally in the legal war on terror. It has been written into the record of one Supreme Court case after another, one lower court ruling following the next, and still we accept the premise that the rule of law as we knew it could and should be twisted unrecognizably, now and forever more, until this ill-defined, ever-evolving, undeclared war is over.

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    Re: Bush Signs Military Commissions Bill (none / 0) (#1)
    by Edger on Tue Oct 17, 2006 at 01:00:37 PM EST
    Well, no one expected that he wouldn't sign it into law. He's working hard at his legacy, I guess.

    The rethugs lied the country into a war. Wiretap citizens. Gut the constitution. Search you and arrest you without warrants or charges. Grab you off the street out of a public demonstration if you oppose them. Deny you the right to a defence lawyer. Eliminate habeas corpus so they can lock you up and throw the key away forever, and torture you for fun if you complain about it. And bankrupt the country while they're at it.

    But the way the elections are shaping up the country will survive in spite of him, and win his war on terror for him, and put the country back together, by booting out the rethugs in November and castrating Bush.

    Would there be significant policy shifts if Democrats regained control?

    Democrats have signaled that if they reached a majority in one or both chambers, and thus gain chairmanship of defense and other committees, they would mount a campaign looking at oversight of executive branch activities in the past few years.

    In particular, they say they would examine the administration's use of prewar intelligence and issues such as the Coalition Provisional Authority's handling of funding and reconstruction in Iraq.

    "No question we're going to get much more aggressive investigations and face-offs with the president...

    Re: Bush Signs Military Commissions Bill (none / 0) (#2)
    by scribe on Tue Oct 17, 2006 at 03:08:07 PM EST
    Here's the "official" Bushco Chicanery stating his whys and wherefores - he claims all sorts of plots busted up because this program was now legal.  

    Interesting, to all of you who thought John Warner was some great civil libertarian when it came to standing up against this bill, a couple weeks ago - he was invited to and attended the signing ceremony.  With Deadeye Dick, Sensenbrenner, and Cannon of Utah.  Warner's a proud papa of this bastardization, he is.

    As to the pending cases, the gov't wasted no time working to get rid of them - they sent this letter to the D.C. Circuit about a minute (or so it seems) after the bill was signed. The petitioners' attorneys have also filed a motion, seeking supplemental briefing on the impact of the new Act, a copy of which is here.

    Here's a commentary from SCOTUSBlog on today's iteration in this whole debacle.  

    All in all, today is a dark day in history.

    Re: Bush Signs Military Commissions Bill (none / 0) (#3)
    by donde on Tue Oct 17, 2006 at 04:53:21 PM EST
    I realize the horror that everyone says this bill is, but I haven't seen anyone (even the ACLU) talking about challenging the law as unconstitutional.  I'm not in the legal field so someone can correct me on this, but isn't one of the first things the Constitution states is that habeas corpus can't be suspended, repealed or altered in any way, shape or form?

    I know Lincoln suspended it during the Civil War, but didn't he still have to pay for it after the war was finished?  I thought I even read one time that Lincoln said he shouldn't have done it to begin with or something along those lines?

    Part of me really can't see Bush exiting in '08 (or earlier possibly) with this law still on the books and being remembered forever for it.  A lot of people think the man is an idiot (and I do as well most times), but he can't really be this stupid?  No historian or legal scholar I know of looks at what Lincoln did as a high point of his presidency.  Everyone on both sides of the idealogical spectrum agree that it was wrong.  Can anyone comment on all this?

    Re: Bush Signs Military Commissions Bill (none / 0) (#6)
    by Gabriel Malor on Wed Oct 18, 2006 at 12:39:29 AM EST

    The Article I restriction only applies to Congressional acts. For quite some time, this section was only applied to those prisoners in federal (that is, Executive) custody. Even at the federal level, there were two exceptions: "when in cases of rebellion or invasion the public safety may require it." The right for state prisoners to apply for habeas corpus in federal courts was created by statute.

    During the Civil War President Lincoln suspended habeas corpus for certain regions when he felt it necessary to take quick action. The Supreme Court ruled in Ex parte Milligan that the suspension of habeas corpus was constitutional because the civilian courts had been forced closed. The Court noted that only when such was the case could a suspension of habeas corpus by the Executive in wartime be constitutional. It also noted that even when habeas had been properly suspended, subjecting citizens to military tribunals could not be done without the approval of Congress.

    In short, suspension of habeas corpus merely means a prisoner can be held, it does not mean the prisoner can be tried by some other ad hoc proceeding (Hamdi v. Rumsfeld, a recent Supreme Court case upheld the general principle applied in Milligan that the right of citizens to habeas corpus cannot be removed).

    After World War II the Court again was asked to consider habeas corpus, only this time the question was what right non-citizens being held in military detention had to invoke habeas. In Ex parte Quirin the Court ruled that Germans being held as unlawful combatants (as contrasted to legitimate POWs) had no right to invoke habeas corpus and were subject to military tribunals.

    The ruling was based on the notion that Congress had authorized Executive action with regard to unlawful combatants.

    Which brings us to the War on Terror. The Bush Administration tried to follow the Quirin precedent by issuing an Executive Order establishing military tribunals for non-citizen unlawful combatants. The administration believed it had received sufficient authorization from Congress and the executive's Article II power. However, the Court ruled in Hamdan v. Rumsfeld that Congress would have to specifically address the question of military tribunals for non-citizen unlawful combatants. (Again, note that POWs are handled differently.)

    And that's why Congress just passed the MCA. It applies to non-citizen unlawful combatants and is, following Hamdan, probably constitutional.


    Re: Bush Signs Military Commissions Bill (none / 0) (#7)
    by Gabriel Malor on Wed Oct 18, 2006 at 01:01:46 AM EST
    And, having read over what I wrote, I want to amplify that those who have opposed the MCA on constitutional grounds are being disingenuous when they say that

    (1) The MCA withdraws habeas review from non-citizens; or

    (2) The MCA removes habeas review from resident non-citizens.

    As you will note from my above summary of the law, the right to non-citizens has always been limited it is not, in any sense, being withdrawn because it never was extended.

    And, contra Senator Leahy's suggestion that resident Muslims could be rounded up in the streets, the Court in Ex parte Quirin ruled that the military tribunals were only lawful in that case because the Germans were being held outside the jurisdiction of the courts of the United States. Had they been on US soil, they would have been entitled to apply to US courts for habeas corpus review.


    Re: Bush Signs Military Commissions Bill (none / 0) (#8)
    by Gabriel Malor on Wed Oct 18, 2006 at 07:55:39 AM EST
    And...one last thing.

    I woke this morning with the realization that I'd been overbroad in my characterization of the MCA as constitutional. To be sure, colorable arguments can be made for and against the constitutionality of some parts of the the act; however, the habeas provisions are not among them.

    If I wanted to make a facial challenge against this law, I'd go after the parts controling the treatment of prisoners and the shape of the tribunals. For the reasons stated above, habeas is probably a loser issue.


    Re: Bush Signs Military Commissions Bill (none / 0) (#9)
    by Edger on Wed Oct 18, 2006 at 08:30:05 AM EST
    the right to non-citizens has always been limited it is not, in any sense, being withdrawn because it never was extended.

    I am no lawyer, but I don't need to be one. My understanding of the Constitution, and of the Bill of Rights, is that the ammendments that constitute the bill are written in the 'negative' sense of telling the government what it is not allowed legally to do to 'people', rather than as 'rights' doled out like cookies to 'subjects' at the pleasure of the government. The bill makes NO distinction between citizens and non-citizens, Americans or non-American.

    Gabriel, the right of non-citizens to habeas corpus protections has never been limited and cannot be withdrawn because it never was extended, and could not be extended, being intrinsic.


    Re: Bush Signs Military Commissions Bill (none / 0) (#10)
    by Gabriel Malor on Wed Oct 18, 2006 at 10:47:43 AM EST
    I'm sorry Edger, but that's just not the case.

    The US District Court for the District of Columbia most eloquently summarizes the Court's position on non-citizens and habeas corpus in the 2004 case Abu Ali v. Ashcroft:

    The Court explained [in JOHNSON, SECRETARY OF DEFENSE v. EISENTRAGER] that it was "confronted with a [*70]  decision whose basic premise is that these [non-citizen] prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus." 339 U.S. at 777. The Court explained that the right to habeas rests on an "ascending scale," with citizens at the highest point and the rights of aliens descending from there on the basis of several variables. Id. at 770. "With the citizen we are now little concerned," the Eisentrager Court noted, "except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens." Id. at 769. Eisentrager then concluded that a military prisoner is not "constitutionally entitled to the writ" where, as in that case, "(a) he is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United [*71]  States." Id.

    Re: Bush Signs Military Commissions Bill (none / 0) (#12)
    by Edger on Wed Oct 18, 2006 at 11:19:45 AM EST
    The decision of that court was that, yes.

    I happen not to agree with it. And I think - no, I know - that I am far from alone in disagreeing with it.

    Courts make decisions. Some are mistakes, and are later found unconstitutional and overturned. That is partof the judicial process. I think that the decision you quoted will be overturned if it comes to a constitutional challenge, as I think that the Military Commission Bill will be. At least I hope so.

    The important point is that the Constitution doesn't apply to Americans, it doesn't apply to citizens, it doesn't even apply to "people." It applies to the federal government. The body of the Constitution tells the federal government what it is allowed to do, and in some places it explains how to do it (election procedures and such). The Bill of Rights tells the federal government what it is not allowed to do . . .

       1. Make no law abridging freedom of speech, press, religion, or assembly,
       2. Do not infringe on the right to keep and bear arms.
       3. Don't quarter soldiers in peacetime.
       4. Don't conduct unreasonable searches and seizures.
       5. Don't commit double jeopardy or force people to testify against themselves.
       6. Don't deny an accused a speedy trial.
       7. Don't deny an accused a trial by jury.
       8. Do not impose excessive bail.
       9. Just because certain rights of the people aren't mentioned in this Constitution doesn't mean you're allowed to usurp them.
      10. Don't exercise any power not authorized in this Constitution.

    Re: Bush Signs Military Commissions Bill (none / 0) (#13)
    by Gabriel Malor on Wed Oct 18, 2006 at 11:53:51 AM EST
    The Seventh Amendment does not extend to criminal trials. It was concerned with civil trials "in suits at common law" as opposed to suits in courts of equity.

    The Sixth Amendment, however, does apply to criminal trials. It provides this:

    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...

    But the Court, way back in the day held that the right only extended to those trials which were understood to be jury trials under the common law of England. So, this doesn't apply to juvenile delinquency trials or "petty offense" trials where the penalty is less than six months.

    IOW, the right to trial by jury is much less secure than you think and that is neither a new phenomena nor ne considered to be controversial by any means.

    Of particular importance to the cases we're talking about--that of enemy combatants captured and held overseas--notice the "State and district" language.


    Re: Bush Signs Military Commissions Bill (none / 0) (#14)
    by Edger on Wed Oct 18, 2006 at 12:36:27 PM EST
    OK, I am out of my league on questions of law, I'll admit. So much so that I don't know enough to agree or disagree with your last comment. At least I know that I don't know.

    What I do know though, is that from everything I read and see and learn from talking with people, is that there is a higher court that makes decisions and hands down judgements on these matters.

    That court will do so on November 7, and again in two years. I have a pretty good idea what the decisions will be. You probably do as well.


    Re: Bush Signs Military Commissions Bill (none / 0) (#11)
    by Gabriel Malor on Wed Oct 18, 2006 at 10:49:35 AM EST
    Hmmm, my bold seems to have gotten away from me. My apologies.

    Re: Bush Signs Military Commissions Bill (none / 0) (#4)
    by Che's Lounge on Tue Oct 17, 2006 at 05:26:01 PM EST
    This is worse than the Patriot Act, and yet people just let it happen.

    Re: Bush Signs Military Commissions Bill (none / 0) (#5)
    by Edger on Tue Oct 17, 2006 at 11:26:59 PM EST
    Statement Of Sen. Patrick Leahy
    September 28, 2006

    On Specter-Leahy-Dodd Amendment To Strike Section 7 Of The Military Commission Bill  
    Senate Floor
    Habeas corpus provides a remedy against arbitrary detentions and constitutional violations.  It guarantees an opportunity to go to court, with the aid of a lawyer, to prove one's innocence.  As Justice Scalia stated in the  Hamdi case, "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."  The remedy that secures that most basic of freedoms is habeas corpus.
    The bill before us would not merely suspend the writ of habeas corpus; it would eliminate it permanently.  It would cut off all habeas petitions - not just those founded on relatively technical claims, but also those founded on claims of complete innocence.
    That is not speculation.  It is not a critic's characterization of the bill.  It is what the bill plainly says, on its face.  It is what the Bush-Cheney Administration is demanding.  It is what any member who votes against the Specter-Leahy amendment and for the bill today will be endorsing.
    This is wrong. It is unconstitutional.  It is un-American.  It is designed to ensure that the Bush-Cheney Administration will never again be embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power.
    This bill gives up the ghost.  This bill is not a check on the Administration but a voucher for future wrongdoing.

    On Friday, September 29, It's Mourning in America

    The man who has endangered America, according to his own restructured intelligence agencies and the facts reported in just one week, is allowed to destroy our Constitution and decide, on his own, who will be tortured.
    This is a suicidal act in terms of our national security. It is giving un-Constitutional and barbaric powers to a man who has miserably and persistently failed us and lied to this nation at every turn - as born out by the facts. It is a thuggish game of forcing an alternative reality upon America, a noxious, deadly one.

    Today, tears would flow down the olive robe of the Statue of Liberty if she were human.