[October 17, 2006]: Today, the Center for Constitutional Rights (CCR) denounced President Bush's signing into law of the Military Commissions Act (MCA). The final version of the bill emerged only four days before the Senate's 11th hour vote. Although President Bush declared that "time was of the essence" when he called for the legislation, he has waited nearly two weeks to sign it into law. Congress has once again been cowed into doing the President's bidding and abdicated their Constitutional powers in the process, say attorneys.
The new law strips the right of non-citizens to seek review of their detention by a court through the filing of a writ of habeas corpus, the venerated legal instrument that for centuries has protected people from arbitrary detention, disappearance and indefinite detention without charge. The Act is also meant to erase the hundreds of habeas corpus petitions that CCR and others have brought on behalf of many of the 450 men being held at Guantánamo Bay, a move already once denied by the Supreme Court.
Further, the MCA dramatically expands the President's powers in an array of profoundly troubling ways, including permitting him to determine what constitutes torture and who may be labeled an "unlawful enemy combatant" and therefore detained indefinitely. Such scope means that non-citizens, such as those unjustifiably rounded up in sweeps after 9/11 in the U.S., could be held without charge or trial. U.S. citizens deemed to have "materially supported" hostilities against the United States could be held as enemy combatants as well. Once in U.S. custody, the law allows detainees to be subjected to stress positions, temperature extremes, sleep deprivation, and possibly waterboarding. It also defines sexual violence crimes so narrowly that some of the outrages of Abu Ghraib, such as forced nudity, would not be punishable, and defines rape and sexual abuse in a manner that is inconsistent with international law, turning back the clock on the hard-fought victories of survivors of sexual violence. At the same time, the bill provides retroactive immunity for U.S military and intelligence officials for the torture and abuse of detainees, including the widely condemned horrors which occurred at Abu Ghraib and Guantánamo.
Characterizing the new law as "an assault on the Constitution," CCR Executive Director Vincent Warren said, "By trading our liberty for a false sense of security, Congress has effectively granted the President the power of tyrants to undermine the foundations of Democracy." He added, "CCR intends to challenge this outrage at every turn, using every tool at our disposal, until we reverse this affront to the rule of law."
Further, Warren pointed out that under this administration's lawless programs, innocent people like CCR client rendition victim Maher Arar-who was recently cleared of any links to terrorism-can be jailed and tortured with no recourse.
CCR has already filed the first new cases to challenge the stripping of habeas corpus: Mohammed v. Rumsfeld, a habeas petition on behalf of 25 men detained at Bagram Air Force Base; and Khan v. Bush, a habeas petition on behalf of Majid Khan, a Baltimore man held in secret by the CIA for nearly three years until President Bush transferred him to Guantánamo in early September. Both cases are in the D.C. District Court.
The law will likely also be tested in two consolidated cases brought on behalf of Guantánamo detainees currently pending before the U.S. Court of Appeals, Al Odah v. United States of America and Boumediene v. Bush. These cases represent the first 13 habeas petitions filed on behalf of Guantánamo detainees and challenge the legality of the detention of 53 men. The initial appeal was argued on September 8, 2005, and the three-panel court has yet to issue its decision.
According to CCR legal director Bill Goodman, the provision of the MCA that strips the right of habeas corpus is a direct violation of the suspension clause of the U.S. Constitution because it denies non-citizens a meaningful opportunity to challenge the legality of their detention. The clause states that the writ of habeas corpus can only be suspended "in Cases of Rebellion or Invasion." Goodman said recent reports of innocent men being released from Guantánamo underscore the importance of moving quickly to defeat this law:
"From Afghanistan to Spain and Germany to Pakistan, innocent men have been returned home to their families. We know, as does the Bush Administration, that many more of the roughly 450 men still held at Guantánamo are also innocent. To deny them the right to make their case and to win their freedom, is not only immoral and illegal, but undermines the concepts of liberty and democracy that this country was built on."
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White House Seizes Power From Judiciary Under Military Commissions Act: Court Told It Lacks Power in Detainee Cases
[October 20, 2006]: Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court here that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba.
In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that "no court, justice, or judge" can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.
Beyond those already imprisoned at Guantanamo Bay or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.
The new law already has been challenged as unconstitutional by lawyers representing the petitioners. The issue of detainee rights is likely to reach the Supreme Court for a third time.
Habeas corpus, a Latin term meaning "you have the body," is one of the oldest principles of English and American law. It requires the government to show a legal basis for holding a prisoner. A series of unresolved federal court cases brought against the administration over the last several years by lawyers representing the detainees had left the question in limbo.
Two years ago, in Rasul v. Bush, which gave Guantanamo detainees the right to challenge their detention before a U.S. court, and in this year's Hamdan v. Rumsfeld , the Supreme Court appeared to settle the issue in favor of the detainees. But the new legislation approved by Congress last month, which gives Bush the authority to try detainees before military commissions, included a provision removing judicial review for all habeas claims.
Immediately after Bush signed the act into law Tuesday, the Justice Department sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit asserting the new authorities and informing the court that it no longer had jurisdiction over a combined habeas case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid, the administration informed that court on Wednesday.
A number of legal scholars and members of Congress, including Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have said that the habeas provision of the new law violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion." Historically, the Constitution has been interpreted to apply equally to citizens and noncitizens under U.S. jurisdiction.
The administration's persistence on the issue "demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it," said Joseph Margulies, a Northwestern University law professor involved in the detainee cases.
On Tuesday, the appeals court granted a petition by lawyers for the detainees to argue against the new law. Vincent Warren, the executive director of the Center for Constitutional Rights, which represents many of the detainees, said yesterday that he expected the administration to file a motion for dismissal of all the cases before the defense challenge is heard.
"We and other habeas counsel are going to vigorously oppose dismissal of these cases," Warren said. "We are going to challenge that law as violating the Constitution on several grounds." Whichever side loses in the upcoming court battles, he said, will then appeal to the Supreme Court.
