JURIST - Hotline: Challenging the Military Commissions Act

Bill Goodman [Legal Director, Center for Constitutional Rights]: "The Center for Constitutional Rights is aggressively challenging the appalling Military Commissions Act (MCA) passed by Congress last week. Our allies have already contributed cogent analyses of some of the dangers posed by the MCA: its unprecedented and expansive suspension of habeas corpus, its retroactive amnesty for U.S. military and intelligence officials who have tortured detainees, its distortion of Common Article 3 of the Geneva Conventions, not to mention the willful surrender of the authority of Congress to check the worst excesses of the President.

To develop this critique further, we think it’s important to draw attention to three elements of the bill in greater detail.

Under the MCA ‘unlawful enemy combatant’ (UEC) is broadly defined as a person who has:
1. “engaged in hostilities or who has purposefully and materially supported hostilities against the United States” or its allies, or
2. been deemed an enemy combatant by a Combatant Status Review Tribunal or “another competent tribunal” established by the President or the Secretary of Defense.
The first definition is so sweeping that it could be read to include anyone who has donated money to a charity for orphans in Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C. The second definition could supersede the first entirely, granting the President shockingly wide latitude to declare anyone a UEC.
Habeas corpus is suspended for any non-citizen who is “detained as an enemy combatant or is awaiting such determination.” Habeas corpus, or the Great Writ, grants the accused the right to challenge their detention in a court of law. The jurisdiction-stripping provision in the MCA threatens to institutionalize racial profiling (such as the immigrant detention sweeps that followed the terrorist attacks of September 11) even as it denies our clients at Guantánamo Bay, most of whom have long since lost hope of a “speedy trial,” any hope of challenging their detention in court.
Rape would no longer qualify as torture unless the intent of the rapist to torture his victim could be proven. This regressive definition has been repeatedly rejected internationally. The MCA also narrowly defines coercion and sexual abuse, effectively making many of the crimes perpetrated at Abu Ghraib legal.

Just prior to the enactment of the MCA, CCR filed a petition for habeas relief on behalf of 25 detainees held at Bagram Air Force Base in Afghanistan, as well as another petition on behalf of Majid Khan, one of the men recently transferred by President Bush from a secret CIA prison to Guantánamo Bay. These cases will present the first new challenges to the constitutionality of the suspension of habeas corpus under the MCA, the most ominous and far reaching threat to our civil liberties by this Administration yet."