To be clear, I’m talking about the so-called Military Commissions Act of 2006, which was signed into law yesterday.
Today we knock down two lies being told publicly about the law.
Lie #1: New Legislation Was Needed to Enable Prosecutions
The first lie is the common-currency soundbite that the law “clears the way for terrorists to be brought to justice”. The White House has repeatedly claimed that the Hamdan Supreme Court decision, which struck down Bush’s previous, half-baked military tribunal system as unconstitutional, barred it from prosecuting the suspected terrorists in military custody until new legislation was passed. The Military Commissions act has frequently been described as “clearing the way” or “enabling” terror suspects to be “brought to justice” via the new law’s rules for military tribunals. The clear implication is that without this law, the White House would be unable to bring terror suspects “to justice”.
Nothing could be further from the truth. The Supreme Court struck down the first military tribunal system, which the Bush administration invented of whole cloth, because it failed to provide a minimum level of due process, as required, among other things, by the Geneva Conventions, which require that detainees be tried by a “regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
The fact is, the White House has at its disposal, and has always had at its disposal, at least two time-tested, known-legal mechanisms for prosecuting terror suspects: regular criminal courts, or military courts-martial.
Neal Katyal has an excellent article in Slate about the folly of having made up a brand new ersatz legal system specifically for terorr suspects instead of just using courts martial. In the Hamdan decision, Justice Stevens wrote that “Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.” But the White House has been bent on subjecting terror detainees to a new, parallel, lesser “justice system” that strips out basic protections for the accused. That and only that is the reason that new legislation is “necessary” to “bring to justice” terror suspects. All the military’s current detainees could have been charged and tried years ago, and the entire Hamdan case would have been completely unnecessary, if the White House had not set out to ensure that terror suspects would be tried by special kangaroo courts.
Lie #2: The New Law Doesn’t Really Allow Indefinite Detention
This lie comes to us from (gasp) Fox News. As called out by Glenn Greenwald, Mort Kondracke, a Fox journalist, said this on the air:
MORT KONDRACKE: Well, as to that human rights watch spokesperson, it’s just false that this is — you can lock them up and throw away the key is not correct. I mean, these detainees have a right to go to a military — they have been tried in a military tribunal. The case goes on appeal to the U.S. district — the Circuit Court of appeals for the District of Columbia, second highest court in the land, which reviews the evidence. And so there is judicial review of a conviction, at least, and so, you know, it’s just flatly false.
This is unadulterated nonsense. As Glenn explains, and as most of the critical coverage of the Torture and Dungeons act has pointed out, the bill does not create any obligation for the government to ever bring detainees to trial, and it forbids detainees from challenging the grounds for, or conditions of, their detention. In this way, the bill clearly creates the ability for the government to imprison people forever simply by declining to bring them to trial. In fact, most of the current “high-value” detainees that may eventually be targets of the new military tribunals have already been held for years without charges of any kind being brought against them.
As Glenn puts it:
What is “flatly false” is what Kondracke told Fox viewers about the Military Commissions Act. It is true that the Act creates military commissions and establishes rules for those commissions in the event that the President wants a certain detainee tried, convicted and punished
But there is no right for detainees to be tried before a commission, and there is no obligation for the President to bring any detainee before a military commission. If the President does not want to obtain a finding of guilt and impose punishment, he has no reason to bring them before a military commission. He can just keep them detained forever without any finding of guilt and without any punishment being imposed
The fact that this legislation expressly gives the President the power to imprison anyone, indefinitely, without ever having to justify his actions to a judge, is one of the most alarming elements of this hideous piece of legislation.