[NYTr] Senate's Halfway Measures on Bush's Tribunals

[All the News That Doesn't Fit]

Consortium News - Sep 18, 2007
http://www.consortiumnews.com/2007/091707.html

Halfway Measures on Bush's Tribunals

By Robert Parry

In a memorable scene from Michael Moore’s “Fahrenheit 9/11,” Rep. John
Conyers explains how it was that Congress passed the USA Patriot Act
without knowing many of its provisions. “Sit down, my son,” the courtly
Michigan Democrat said. “We don’t read most of the bills.”

That reality does not appear to have changed much. In back-to-back
years, Congress rushed through two sweeping pieces of legislation – the
Military Commissions Act of 2006 and the Protect America Act of 2007 –
without a full understanding of the powers being granted to President
George W. Bush.

Now, the U.S. Senate is expected to consider legislation scrapping one
part of the 2006 law, its denial of habeas corpus – the ancient
protection against arbitrary arrests – to foreigners whom Bush has
designated “unlawful enemy combatants.”

The lead New York Times editorial on Sept. 17 [see below -NYTr] praised
this effort to “reverse one of the worst aspects of the 2006 law” that
“established military tribunals to try any foreigner that Mr. Bush
labels an illegal combatant.” But the Times editors – like many members
of Congress – don’t appear to have read the law through to the end.

If they had, they would know that the Military Commissions Act creates
a parallel legal system not limited to foreigners. The law could put
“any person,” including those “in breach of an allegiance or duty to
the United States” before a military tribunal if the person “knowingly
and intentionally aids an enemy of the United States.”

Who has “an allegiance or duty to the United States” if not an American
citizen? That provision would not presumably apply to Osama bin Laden
or al-Qaeda, nor would it apply generally to foreigners.

This section of the law appears to be singling out American citizens
who are deemed (by the Bush administration) enemy fellow travelers. It
seeks to put them inside Bush’s “star chamber” proceedings if they are
alleged to aid and abet foreign enemies.

“Any person is punishable as a principal under this chapter who commits
an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission,” according to the law, passed by
the Republican-controlled Congress in September 2006 and signed by Bush
on Oct. 17, 2006.

[To see an excerpt from the “any person” section of the law, click
here:
http://www.consortiumnews.com/milcom-enemies.pdf

To read the entire law, click here:
http://www.loc.gov/rr/frd/Military_Law/pdf/PL-109-366.pdf ]

Court Stripping

The military commissions also go beyond covering violations of the laws
of war. The tribunals, with truncated rights for defendants, apply as
well to spying, providing “material support” to alleged terrorist
groups and other offenses that have been routinely handled within the
traditional U.S. legal system.

Indeed, it appears the goal of these “any person” provisions is to
allow for the detention of perceived “fifth columnists” or other
domestic enemies of the state at a time of crisis, such as during some
future terrorist incident.

Though it’s true the Military Commissions Act specifically strips
non-U.S. citizens of habeas corpus, the law implicitly denies everyone
who gets swept into Bush’s new legal system the opportunity to
challenge their incarceration.

Once inside, the law prohibits detainees from appealing to the
traditional U.S. courts until the tribunals have fully prosecuted and
sentenced each defendant, a process that could last indefinitely since
there are no timetables for the tribunal process to play out.

The law states that once a person is detained, “no court, justice, or
judge shall have jurisdiction to hear or consider any claim or cause of
action whatsoever … relating to the prosecution, trial, or judgment of
a military commission under this chapter, including challenges to the
lawfulness of procedures of military commissions.”

That court-stripping provision – barring “any claim or cause of action
whatsoever” – would seem to deny detainees a wide variety of
constitutional rights – such as a speedy trial, the right to reasonable
bail and the ban on “cruel and unusual punishment.” If a person can’t
file a motion with a court, constitutional rights can’t be asserted.

By putting detainees outside the traditional U.S. constitutional
process, Bush’s system particularly makes a mockery of the Sixth
Amendment, which reads:

“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 … and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; [and] to have compulsory process for obtaining witnesses.”

By contrast, in Bush’s system, there are no guarantees of either a
speedy or a public trial. Secrecy dominates in a process run by U.S.
military officers whose careers depend on the favor of the Commander in
Chief.

Under the 2006 law, the military judge “may close to the public all or
a portion of the proceedings” if he deems that the evidence must be
kept secret for national security reasons. Those concerns can be
conveyed to the judge through ex parte – or one-sided – communications
from the prosecutor or a government representative.

The judge also can exclude the accused from the trial if there are
safety concerns or if the defendant is disruptive. Plus, the judge can
admit evidence obtained through coercion if he determines it “possesses
sufficient probative value” and “the interests of justice would best be
served by admission of the statement into evidence.”

Secret Evidence

The law permits, too, the introduction of secret evidence “while
protecting from disclosure the sources, methods, or activities by which
the United States acquired the evidence if the military judge finds
that ... the evidence is reliable.”

During trial, the prosecutor would have the additional right to assert
a “national security privilege” that could stop “the examination of any
witness,” presumably by the defense if the questioning touched on any
sensitive matter.

Even if an appeal could get through to the civilian courts, it might
take years before the U.S. Supreme Court addresses the detentions and –
given the increasingly right-wing make-up of the Court – there would be
no assurance that the justices wouldn’t endorse the law’s extraordinary
powers.

In its editorial, the Times takes note of the law’s “kangaroo court”
provisions and recognizes that the current legislative fixes don’t deal
with these concerns. “All of those issues must be addressed, speedily,
by Congress, but restoring habeas corpus would be a good first step,”
the editorial said.

The most prominent bill, sponsored by Sens. Patrick Leahy, D-Vermont,
and Arlen Specter, R-Pennsylvania, limits itself to deleting the
Military Commissions Act’s specific denial of habeas corpus rights to
non-U.S. citizens.

As the Times noted, passage of the Leahy-Specter bill would restore
some legal balance to the process. By reinstating habeas corpus,
Congress would make it harder for the Executive to prevail in the
courts since the courts normally take into account congressional intent
when weighing a legal appeal.

But the Leahy-Specter bill would leave in place Bush’s unprecedented
parallel legal system that now resides outside the American
constitutional structure.

It’s also unclear if Congress will even agree to something as limited
as restoring habeas corpus, a principle in English law that dates back
to the Magna Carta of 1215 and a right that the Founders considered so
important that they embedded it in the U.S. Constitution in 1787.

Surely, if the debate takes place, supporters of the Leahy-Specter bill
will be accused of caring more about the rights of Islamic terrorists
than the security of the American people. That's how the debate was
framed in September 2006, leading 65 senators and 250 House members to
vote for Bush's bill in the weeks before the congressional elections.

“The [Bush] administration’s disinformation machine portrayed the
debate as a fight between tough-minded conservatives who wanted to
defeat terrorism and addled liberals who would coddle the worst kinds
of criminals,” the Times recalled.

But the Times noted that many traditional conservatives object to the
trampling of the Constitution just as many liberals do. But the fear of
getting labeled “soft on terror” still pervades the ranks of
congressional Democrats.

Leahy, for one, has privately fumed over the unwillingness of
Democratic Senate leaders to bring his proposal to the floor. There
also is no reason to believe that Congress has any inclination to go
further and revamp Bush’s extra-constitutional tribunal system more
thoroughly.

In the event of another terrorist incident or a similar national
crisis, there’s also little reason to think that Bush won’t interpret
every legal ambiguity in the Military Commissions Act as granting him
the broadest possible powers.


[For more on constitutional implications of the Military Commissions
Act. see our new book, Neck Deep: The Disastrous Presidency of George
W. Bush.]

Robert Parry broke many of the Iran-Contra stories in the 1980s for the
Associated Press and Newsweek. His latest book, Neck Deep: The
Disastrous Presidency of George W. Bush, was written with two of his
sons, Sam and Nat, and can be ordered at neckdeepbook.com ]

                        ***

The New York Times - Sep 17, 2007
http://www.nytimes.com/2007/09/17/opinion/17mon1.html

Editorial

Restoring American Justice

In 2006, acting in reckless haste before an election, 65 senators and
250 members of the House defied the Constitution, endangered the safety
of American soldiers and hurt the nation’s global reputation by passing
the Military Commissions Act. The law created a separate, substandard
and clearly unconstitutional system of trial and punishment for
foreigners. This week Congress has a chance to begin fixing that
grievous mistake.

The Senate is expected to consider a measure that would reverse one of
the worst aspects of the 2006 law — the suspension of the right of
habeas corpus, the ancient principle that no governing power may lock
people up without the chance for a hearing in a court of law.

The protection from arbitrary arrest, embedded in the Magna Carta and
in the Constitution of the United States, is one of the most powerful
weapons against tyranny in democracy’s arsenal. Before President Bush,
only one American president suspended habeas corpus — Abraham Lincoln,
during the Civil War — and the Supreme Court duly struck down that
arrogation of power.

In 2004, the Supreme Court again affirmed habeas corpus, declaring that
Mr. Bush had no right to revoke the rules of civilized justice at his
whim for hundreds of foreigners he declared “illegal enemy combatants.”
But Mr. Bush was determined to avoid judicial scrutiny of the
extralegal system of prisons he created after the Sept. 11 attacks.
With the help of his allies on Capitol Hill, he railroaded the habeas
corpus suspension through the Republican-controlled Congress.

The administration’s disinformation machine portrayed the debate as a
fight between tough-minded conservatives who wanted to defeat terrorism
and addled liberals who would coddle the worst kinds of criminals. It
was nothing of the kind.

There is nothing conservative about expressing contempt for the
Constitution by denying judicial procedure to prisoners who happen not
to be Americans. A long list of conservatives, including Bob Barr, a
former Republican congressman; David Keene, chairman of the American
Conservative Union; and William Sessions, a former federal judge and
F.B.I. director under the first President Bush, support the
reinstatement of habeas corpus for the prisoners of the so-called war
on terror.

This issue has nothing to do, either, with coddling criminals. Many,
perhaps a majority, of the men subjected to indefinite summary
detention at Guantánamo Bay were not guilty of any crime. Beyond that,
American justice rests on the principle that the only way to protect
the innocent is to treat everyone equally under the law. The argument
by Mr. Bush’s supporters that Guantánamo prisoners would clog the
courts with appeals is specious.

There are many other things deeply wrong with the Military Commissions
Act, which established military tribunals to try any foreigner that Mr.
Bush labels an illegal combatant. It also allowed the introduction of
evidence tainted by coercion and endorsed “combatant status review
tribunals,” kangaroo courts in Guantánamo Bay that declare prisoners
enemy combatants without a real hearing or reliable evidence.

All of those issues must be addressed, speedily, by Congress, but
restoring habeas corpus would be a good first step. Harry Reid, the
Senate majority leader, must ensure a vote on the habeas corpus
restoration measure sponsored by Patrick Leahy, the Democratic chairman
of the Senate Judiciary Committee, and Arlen Specter, its ranking
Republican.

It is good to see the effort led by Mr. Specter, who as chairman of the
committee before the 2006 election shepherded the military tribunal law
through Congress at the behest of the White House. We hope similar
principle will be on display by the other Republican and Democratic
senators and representatives who betrayed the Constitution and the
democracy they were sworn to defend by voting for that law.

Copyright The New York Times Company