A Truthout video describes the effort to overturn the Military Commissions Act.[1]  --  This widely denounced measure, signed into law by President George W. Bush on Oct. 17, 2006, stripped "enemy combatants" (who are such solely on the president's say-so) of the right to petition in civilian court for a writ of habeas corpus.  --  Habeas corpus, which represents the superiority of constitutional law over executive authority, is a fundamental defense against tyranny and against despotism.  --  But as Sen. Carl Levin said in an Apr. 26, 2007, statement, this issue is not only about about protection for others.  --  It's also about the meaning of America.  --  The elimination of habeas corpus, like a host of other measures taken since Sept. 11, 2001, have made the United States a paragon of hypocrisy in the eyes of the world.  --  And, completing the circle, the world's condemnation on this score makes every American less secure.  "If we fail to uphold our own values, we undermine our own security," Sen. Levin said. [2] -- But on Tuesday, an editorial in the St. Petersburg (FL) Times castigated the Democratic Congress for not acting more quickly on this "matter of principle."[3]  --  And on Monday, the director of the Liberty and National Security Project at the Brennan Center for Justice lamented that "Despite the powerful advocacy of former military officials, religious figures, and law enforcement officials, Congress has as of yet failed to fix a single one of the MCA’s many flaws."[4] ...



By Geoffrey Millard, Lance Page and Scott Galindez

May 2007


The Senate Armed Services Committee held a hearing in preparation for an expected showdown with the Bush administration over the Military Commissions Act, which was narrowly passed last year. Congressional Democrats are expected to pass legislation this year to amend provisions in the act such as the denial of habeas corpus, the narrowing of the accepted definitions of "cruel and inhuman treatment," and the shielding of senior administration officials from accountability for detainee abuses. Chairman of the Senate Judiciary Committee, Senator Patrick Leahy of Vermont, was the first witness, and called the current treatment of detainees "un-American."


By Senator Carl Levin, Chairman, Senate Armed Services Committee

April 26, 2007


America's standing in the world has taken a nosedive since the world embraced us after 9/11. According to a recent poll conducted by the Program on International Policy Attitudes, 67% of the people surveyed across 25 countries disapprove of the U.S. handling of Guantanamo detainees. The Program Director explained: "The thing that comes up repeatedly is not just anger about Iraq. The common theme is hypocrisy. The reaction tends to be -- You were a champion of a certain set of rules. Now you are breaking your own rules."

The Secretary of Defense recognized this problem last month when he acknowledged that he had recommended closing Guantanamo because "there is a taint about it."

America at its best is a beacon for human rights and human liberty, and that's how we like to see ourselves. But much of the world sees us in a very different way when we fail to live up to the standards we profess. For us, the symbol of American values is the Statue of Liberty. For much of the world, it is that horrific photograph of a hooded prisoner at Abu Ghraib, standing on a box, strung up with wires.

It's no doubt hard to care about due process for people like Khalid Sheikh Mohammad and Abu Zubaydah. But, as Senator Graham said at the time of our trip to Guantanamo to observe the CSRT for Khalid Sheikh Mohammad, it's not about them. It's about us. If we fail to uphold our own values, we undermine our own security.

There are many reasons not to allow abuse of detainees or the use of coerced testimony -- it's morally wrong, it produces unreliable information, it violates domestic and international law, it undermines the support we need in the world community to win the war against terrorism, and it jeopardizes our own troops if they are captured. But there is also this: people are less likely to believe what we say about our detainees if they have been abused. Even when an admitted terrorist like Khalid Sheikh Mohammad confesses to the most heinous of terrorist acts, the world focuses far too much on how we treated him and not nearly enough on what, by his own words, he did to us.

The Administration would like us to believe that detainees’ allegations of abusive treatment are fabrications, based on al Qaeda training manuals.

But listen to what our own people at Guantanamo were saying. In late 2002, FBI personnel at Guantanamo objected to aggressive military interrogation techniques, describing them as "coercive" and "torture" techniques. Law enforcement personnel questioned the legality of these techniques and told FBI officials back in Washington "you won't believe it." And a Defense Department investigation led by Lt. General Randall Schmidt found that the use of these techniques constituted "abusive treatment."

Last September, this Committee approved, on a bipartisan 15-9 vote, a bill that would have helped address the problems caused by our treatment of detainees by establishing new procedures for trying detainees, consistent with the Supreme Court's ruling in Hamdan v. Rumsfeld. However, this bill was never taken up by the full Senate. Instead, the Administration persuaded a majority of Congress to:

narrow the accepted definitions of "cruel and inhuman treatment"; authorize the Administration to unilaterally redefine its obligations under the Geneva Conventions; allow the use of hearsay and coerced testimony in criminal trials of detainees; insulate senior administration officials from accountability for detainee abuses; bar detainees from ever bringing any legal action challenging any aspect of their detention; and prohibit the courts from providing legal relief for detainees who are found to be improperly held.

Most detainees will never be tried by a military commission, so they will not receive even the limited rights provided by the MCA. Under procedures established by the Administration for conducting Combatant Status Review Tribunals (CSRTs) at Guantanamo, these detainees can be detained for life as an enemy combatant on the basis of coerced testimony and hearsay evidence, without having a lawyer, without knowing what the evidence was against him, and therefore, without having a reasonable opportunity to disprove that evidence.

In proceedings in federal district court in 2004, Justice Department attorneys went so far as to take the position that the Executive branch has the authority to unilaterally detain as enemy combatants "[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but really is a front to finance al Qaeda activities," or "a person who teaches English to the son of an al Qaeda member." The Administration's definition of the term "enemy combatant" does not even require that the support provided to terrorist activities be knowing or intentional.

Professor Mark Denbeaux of Seton Hall University, who will be testifying here, has reviewed the publicly-available records of CSRTs conducted at Guantanamo. Professor Denbeaux found among other things that: the government never called a single witness at any of the 393 CSRT proceedings for which full or partial records have been released; and that for 93 percent of the CSRT hearings, the detainee was not provided access to any of the classified or unclassified evidence relied upon by the government to determine his status. Professor Denbeaux also reports only 5 percent of the Guantanamo detainees were captured by U.S. forces on the battlefield, compared to 86 percent who were apprehended either by Pakistan or the Northern Alliance and turned over to the United States, at a time when the United States offered large bounties for the capture of suspected terrorists.

Last week, I received a letter from a number of human rights groups suggesting that the CSRT process is so badly flawed that it cannot be fixed and that the only appropriate remedy is the restoration of habeas corpus jurisdiction in the federal courts. I opposed the habeas corpus limitations in last year's Military Commissions Act, because I believe that habeas corpus jurisdiction in the federal courts provides an important check on the misuse of executive branch power.

However, I cannot agree with those who suggest that we should oppose any reform of the CSRT process. Even if Congress were to repeal last year's provision restricting habeas corpus jurisdiction -- and remembering that after five years of litigation, and multiple Supreme Court rulings in favor of detainee rights, no detainee has yet received a hearing on the merits in the federal courts -- it is not clear whether such a hearing would ever take place, or how many more years of litigation would be required to achieve that result. Even if the courts ultimately rule in favor of the detainees as they have in the past, the likely result would be further action by either Congress or the executive branch -- leading to more litigation and delaying a hearing on the merits still further.

I believe that the current CSRT process falls short of the Supreme Court requirement that an alternative to habeas corpus must be adequate and effective to test the legality of a person's detention. It fails to provide the protections that we would insist upon for our own troops, fails to meet our standards as a nation, and undermines our position in the world. If so, we have an obligation to act now to establish a process that we can defend.

I look forward to the testimony of our witnesses.




St. Petersburg (FL) Times
May 15, 2007


Does the Democratic-controlled Congress have the will to repeal a repugnant provision of the Military Commissions Act? Passed in a rush before the last election, the law stains this country's national reputation as a bulwark of liberty. It strips habeas corpus rights from the prisoners in Guantanamo, making it impossible for people who have now been held for up to five years without charge to challenge the legitimacy of their continued detention before a real court.

The Democrats promised to set things right, which means restoring this important civil liberty. But it appears politics might be getting in the way.

An opportunity arose last week to add an amendment to the annual defense authorization bill that would have returned habeas corpus rights to detainees. The votes reportedly were there, but House Armed Services Committee Chairman Ike Skelton, D-Mo., failed to support the effort. He says he intends to sponsor a stand-alone measure to accomplish the same thing.

It was a political calculation, one almost as distressing for what it says about Democrats as what it means for the Guantanamo prisoners caught in a legal black hole. A stand-alone bill is far less likely to succeed than an attachment to a must-pass annual defense bill. Undoubtedly, President Bush will veto any effort to limit his power to hold people indefinitely without an independent review -- a power granted under the Military Commissions Act that Bush had previously declared for himself. But he might have a harder time vetoing a bill that includes many things he wants.

If the Democrats were serious about returning the checks and balances to our legal system, they would add a habeas corpus amendment to every vital piece of relevant legislation until the president capitulates or there are enough votes for an override. This is a matter of principle. It doesn't matter what the other party's sound bites might sound like in the next election.

If the Republicans claim that restoring this fundamental protection of our Constitution is somehow coddling terrorists, then Democrats can point to the likes of William Sessions, former FBI director under the first President Bush, as well as numerous other notable conservative leaders who are urging Congress to resurrect habeas corpus.

To do nothing with an opportunity to right a terrible historical wrong is nearly as bad as continuing to defend it. The Democrats missed an important opportunity to demonstrate leadership and political courage. They attracted voters last November by promising to make things right. Now they need to make good on their word.


By Aziz Huq

May 14, 2007


Six months after Congress enacted the Military Commissions Act of 2006 with its eyes firmly on the polls, there have been many promises and proposals from legislators about how to remedy the damage done to civil liberties by that law -- but little action. Despite the powerful advocacy of former military officials, religious figures, and law enforcement officials, Congress has as of yet failed to fix a single one of the MCA’s many flaws.

As efforts to rectify the MCA’s most egregious incursions of America’s separation of powers hang in the balance, it is worth recalling how much is at stake today -- and how badly things could go wrong if enacted legislation doesn’t achieve real reform.

Proving that elections as well as emergencies can make bad law, Congress in the MCA bundled provisions that cut back on the supervision of executive branch actions in counterterrorism operations. In particular, Congress made it easier to hold individuals without an adequate or lawful process to determine what they have in fact done to merit detention. It established a category of “Unlawful enemy combatant,” which is presently limited in function, but which may create an open-ended detention authority. And it’s of little use allowing people to challenge their executive detention in court, if the government can hold you for good reason, little reason, or almost no reason.

And that’s not to mention the system of “military commissions” established for terrorism cases that allow evidence from “torture lite,” a system that is wholly unnecessary for the protection of legitimate secrets because of the proven ability of the federal courts to handle such cases .

But perhaps the most immediately pernicious part of the MCA was a frontal assault on the rule of law: an attack on the writ of habeas corpus, the legal remedy historically used against unlawful detention by the executive, the remedy which allows a prisoner to go to court and demand that the executive demonstrate why his detention is lawful.

Habeas has a long history. From its inception, it was intimately tied to the project of restraining an unchecked executive branch: It is a purpose that is no less important today than it was centuries ago. Unchecked executive power is as much a problem today as it was four hundred years ago.

What the United States inherited from the British legal system was a tradition of resistance to abusive executive power. This tradition is usually anchored in the agreement called the Magna Carta, signed in 1215 at Runnymede, but it’s more accurate to trace it back to the early 1600s and to parliamentary responses to the first Stuart King James I.

Among the young Scottish king James’s claims to fame was his authorship of a book called the The True Law of Free Monarchies. Says James: "Kings are justly called gods; for they exercise a manner of resemblance of divine power upon earth. For if you will consider the attributes of God, you shall see how they agree in the person of a king." (Sound familiar? It should. The present administration has explicitly reached back to pre-Revolutionary monarchical practice in order to justify their approach to constitutional law.)

It was James son, Charles I, who stepped across the line by extending this principle of absolute power to the physical liberty of his subjects (in a case called Darnell’s case). Parliament's reaction was speedy. In 1640, it responded with the first statutory protection of habeas corpus -- a right to challenge the executive detention the first royal capital trial in British history.

Today, habeas remains important because the executive branch still claims to stand above the law. For the habeas-stripping provisions, while written broadly, really focus on one problem: Guantánamo.

The troubling prison facility was opened in early 2002, and was quickly filled with individuals captured down on the Afghan battlefield -- and from places as far-flung as Bosnia, Thailand, and Gambia. Generally, in the conduct of wartime detentions, the military conducts “Article 5 hearings” to sort innocent shepherds from dangerous combatant. But the White House decided instead that the President could declare categorically that anyone detained was an enemy combatant -- without any individualized determinations. The president’s declaration, memorialized in an order issued in February 2002, was not an effort to reflect reality. It was a "because I say so, it is." It was, in other words, an assertion of the unilateral power to define reality.

As a result, the military has never had to justify its detention; it has never had to establish even to itself, that it caught the right people. Far easier to say that Guantánamo contained the worst of the worst. Far easier to argue that the federal courts have no power to hear cases from Guantánamo -- an argument the Supreme Court rejected in 2004. Far easier to establish sham tribunals to rubber stamp virtually every detentions decisions (called CSRTs) rather than in fact justify detentions. And far easier to go to Congress, not once, but twice and shove through legislation that derogates from the age-old remedy of habeas corpus than have to explain to a federal court the unfettered usage of executive power to deprive individuals of their liberty without any explanation.

The result is detentions that are an embarrassment for the United States around the world, a powerful recruiting symbol for al Qaeda not to mention the tens of millions of dollars wasted in holding a group of prisoners who are likely largely innocent.

Restoration of habeas is one step in the restoration of government under law, and it should be a priority for a Congress that is devoted to real security, rather than charades of vigorous action that do nothing to keep us safe.

Nevertheless, as the possibility of a floor vote on habeas restoration looms, it is also worth keeping an eye on the means by which the administration might still seek to undercut accountability. This is a government that has proved remarkably agile in avoiding really answering for their bad decisions, and we can’t assume they will begin doing so today. There are three things to keep an eye on.

First, even once the habeas function of the federal courts is restored, who has the power to review the facts about an individual detention decision? When the key issue is who is a shepherd and who is a combatant, the facts matter deeply. But the CSRTs are really about finding the truth -- they are about ratifying long-ago detention decisions that are in fact deeply unfair. Any law that does not allow the federal courts to do new fact-finding will be fundamentally flawed.

Second, who can be detained? Any new legislation must be scrupulously analyzed to determine whether it incidentally expands executive detention authority.

And finally, does the legislation in any way sign-off on the theory of vast executive power that the administration has consistently proffered? For that vision of open-ended power has not gone away. To the contrary, it’s the reason why this administration keeps going to such lengths to shield decisions from review: It is afraid that a court will not only strike down a particular erroneous decision, but will also invalidate the administration’s dangerous theory of unlimited power.

Habeas must be restored. By its inaction over the last six months, Congress has shown it has yet to grasp that security policy that undermines accountability does not make us more safe, even as it harms innocents. It is a problem that needs to be grasped -- and needs to be grasped today.

--Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror, and recipient of a 2006 Carnegie Scholars Fellowship.