Tuesday, Oct. 17, 2006, the day President George W. Bush signed the Military Commissions Act into law, joins Sept. 28, 2006, the day the U.S. Senate voted its approval, as one of the darkest days in all of American history.  --  You wouldn't know that from the reporting of the New York Times, however, which failed to place its pitiful article on the event on the front page, and did not mention the name of the act in its article.[1]  --  The same was true of the Washington Post, though reporter Michael Fletcher did somewhat better at describing the opposition to the act and conveying the reasons why the bill's opponents consider it the bill "unconstitutional and un-American," as ACLU president Anthony Romery said.  --  But one would never guess from the coverage in the New York Times and the Washington Post that a number of informed observers believe that the law marks the historic end of the United States as a constitutional republic, as Chris Floyd argued, saying that the American president "has claimed — and used — openly, without any demur or debate from Congress at all:  ordering the 'extrajudicial killing' of anyone on earth that he and his deputies decide — arbitrarily, without charges, court hearing, formal evidence, or appeal — is an 'enemy combatant.' . . . This is not hyperbole, liberal paranoia, or 'conspiracy theory,' it's simply a fact, reported by the mainstream media, attested by senior administration figures, recorded in official government documents — and boasted about by the president himself, in front of Congress and a national television audience."  --  The Los Angeles Times steered a middle, and perhaps more reliable course, observing that "The law is bound to generate new and contentious legal challenges that probably will leave U.S. policies on detainees in an uncertain state," and did much more than either the New York Times or the Washington Post in addressing some of the legal complexities ahead.  --  The L.A. Times also noted that "Within two hours of the signing ceremony, department lawyers notified the U.S. Appeals Court in Washington that the new law eliminated federal court jurisdiction over dozens of lawsuits filed on behalf of prisoners held at U.S. military prison at Guantanamo Bay, Cuba."  --  But Michael Ratner of the Center for Constitutional Rights said confidently: "We beat them in Rasul. We beat them in Hamdan.  Now, they have tried to beat us in Congress.  I don't think it will work.  They have been slapped down twice.  I think they will be slapped down again." ...



By Sheryl Gay Stolberg

New York Times
October 18, 2006


[PHOTO CAPTION: Calling it “a way to deliver justice’’ to captured terrorists, President Bush yesterday signed a bill on interrogating and trying suspects.]

WASHINGTON -- President Bush signed legislation Tuesday that creates new rules for prosecuting and interrogating terrorism suspects, a move Mr. Bush said would enable the Central Intelligence Agency to resume a once-secret program to question the most dangerous enemy operatives in the war on terror.

“It is a rare occasion when a president can sign a bill he knows will save American lives,” Mr. Bush said at a ceremony in the East Room of the White House.

He called the bill “a way to deliver justice to the terrorists we have captured.”

But the C.I.A. program is unlikely to resume immediately, because the law authorizes Mr. Bush to issue an executive order clarifying the rules for questioning high-level detainees and the order has not been written. Many experts believe that the harsh techniques the C.I.A. has used, including extended sleep deprivation and water-boarding, which induces a feeling of drowning, will not be allowed.

With the midterm elections three weeks away, Mr. Bush hoped to use the bill signing to turn the political debate back to the war on terrorism, a winning issue for Republicans, and away from scandals like the Mark Foley case, which have dominated the news in recent weeks. The president said he was signing the measure “in memory of the victims of September the 11th.”

The law sets up a system of military commissions for trying terrorism suspects that would allow evidence to be withheld from defendants in certain instances. It also strips the federal courts of jurisdiction to hear petitions from noncitizens for writs of habeas corpus, effectively preventing detainees from going to court to challenge their confinement.

More than 500 habeas suits are pending in federal court, and Justice Department officials said Tuesday that they would move swiftly to dismiss them under the new law. That will inevitably spark a challenge by civil liberties lawyers, who regard the habeas-stripping provision as unconstitutional, a view shared by many Democrats on Capitol Hill.

“Congress had no justification for suspending the writ of habeas corpus, a core value in American law, in order to avoid judicial review that prevents government abuse,” said Senator Patrick J. Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee.

The bill signing drew protests outside the White House from human rights advocates, some dressed in orange jumpsuits of the sort worn by detainees at Guantánamo Bay, Cuba. They gathered around a black coffin painted with the words “the corpse of habeas corpus”; some were arrested after refusing to move away from the White House gates.

Joining the president at the bill signing were senior members of his war cabinet, including Vice President Dick Cheney, Defense Secretary Donald H. Rumsfeld and Gen. Michael V. Hayden, director of the C.I.A.. In an e-mail message to C.I.A. employees, General Hayden called the measure a “very public vote of confidence by Congress and the president in the skill and discipline of C.I.A.’s officers.”

Leading Republican lawmakers, among them Senators John W. Warner of Virginia and Lindsey Graham of South Carolina, who balked at the initial White House version of the bill and forced a much-publicized compromise, were also on hand. But the third leader of that Republican rebellion, Senator John McCain of Arizona, was noticeably absent.

Mr. McCain, a likely presidential contender in 2008, skipped the ceremony to go to Wisconsin to campaign for a Republican House candidate, John Gard, and was later headed to Sioux Falls, S.D., to address the Chamber of Commerce. A spokeswoman said the senator’s absence was “purely an issue of scheduling.”

The bill was prompted by a Supreme Court ruling, Hamdan v. Rumsfeld, that invalidated the system of military commissions Mr. Bush had set up for trying terrorism suspects, saying they required Congressional authorization. The court also required suspects to be treated in accordance with a provision of the Geneva Conventions, Common Article 3, which prohibits cruel and inhumane treatment, including “outrages upon personal dignity.”

The ruling prompted Mr. Bush to acknowledge the existence of the secret C.I.A. program. Last month, he announced he was moving 14 high-level terrorism detainees out of C.I.A. custody and to the detention center at Guantánamo Bay. He called on Congress to pass a bill setting up military commissions and establishing new standards for interrogation so the C.I.A. program could go forward.

--Neil A. Lewis contributed reporting.



Bush Administration

By Michael A. Fletcher

** New Law Governs Interrogation, Prosecution of Detainees **

Washington Post
October 18, 2006
Page A04


[PHOTO CAPTION: With President Bush as he signs the Military Commissions Act are, from left, Rep. Steve Buyer (R-Ind.), Rep. F. James Sensenbrenner Jr. (R-Wis.), Sen. Lindsey Graham (R-S.C.), Rep. Duncan Hunter (R-Calif.) and Sen. John Warner (R-Va.).]

President Bush enacted controversial changes in the system of interrogating and prosecuting terrorism suspects yesterday, setting the rules for the trials of key al-Qaeda members in a step that he says will help protect the nation.

Surrounded by members of his Cabinet and legislators, Bush signed the changes into law during a White House ceremony as more than 100 protesters stood outside in the rain chanting slogans denouncing the measure as a violation of fundamental American traditions.

The new law imposes tight limits on defendants' traditional courtroom rights, including restrictions on their ability to examine the evidence against them, to challenge their incarceration, and to exclude evidence gained through witness coercion.

The president said the extraordinary measure is justified by the extraordinary circumstances of the fight against terrorism. "It is a rare occasion when a president can sign a bill he knows will save American lives," he said, before signing the measure. "I have that privilege this morning."

Bush said the new law will allow the United States to prosecute captured terrorism suspects for "war crimes," and bring to justice the al-Qaeda operatives who plotted the Sept. 11, 2001, attacks, the October 2000 suicide bombing of the USS Cole in Yemen, and the August 1998 truck bombings of U.S. embassies in Kenya and Tanzania.

The bill also spells out the specific interrogation techniques that are outlawed, while granting retroactive legal protection to military and intelligence personnel who previously participated in rough questioning of terrorism suspects. That provision allows the administration to continue a once-secret CIA program for detaining terrorism suspects and using tough interrogation techniques on those believed to have information about plots against the United States, Bush said.

"This program has been one of the most successful intelligence efforts in American history," Bush said. "It has helped prevent attacks on our country. And the bill I sign today will ensure that we can continue using this vital tool to protect the American people for years to come."

With the midterm elections coming on Nov. 7, congressional Republicans immediately seized on the new law, which was opposed by most Democratic lawmakers, as evidence of their commitment to protect the country against terrorist attacks.

"Capitol Hill Democrats have yet to offer any solutions or formulate any serious national security policy on how to keep America safe in a post-9/11 world," House Majority Leader John A. Boehner (R-Ohio) said in a statement.

Some Democrats, meanwhile, criticized Bush for signing a measure that they say violates the nation's civil liberties protections. "It is a sad day when the rubber-stamp Congress undercuts our freedoms, assaults our Constitution and lets the terrorists achieve something they could never win on the battlefield," said Sen. Patrick J. Leahy (D-Vt.).

Human rights advocates have questioned the value of information obtained through aggressive methods, and the military last month abandoned tough interrogation techniques. "No good intelligence is going to come from abusive practices," Lt. Gen. John F. Kimmons, the Army deputy chief of staff for intelligence, said last month in announcing the Army's new interrogation policy.

Bush approved the prosecution of "unlawful enemy combatants" before special military commissions shortly after the Sept. 11 attacks, but trials were suspended pending the outcome of appeals questioning their legality in federal court. In June, the Supreme Court struck down the commissions, saying they had not been authorized by Congress and violated the Geneva Conventions. Consequently, the Bush administration pressed Congress to pass a bill to legalize them and to endorse many of the methods used by U.S. intelligence officials to get information from terrorism suspects.

Even with enactment of the legislation, White House press secretary Tony Snow said, trials of terrorism suspects are months away, at least.

The legislation was approved by Congress late last month and is already being challenged by several lawsuits. "This issue is clearly going to be in the courts for years," said Anthony D. Romero, executive director of the American Civil Liberties Union. "It is unconstitutional and un-American."


By Richard B. Schmitt and Julian E. Barnes

** As the controversial law on terror trials and interrogations takes effect, Justice Dept. asks that prisoners' hearing requests be dismissed. **

Los Angeles Times
October 18, 2006


WASHINGTON -- President Bush signed new legislation Tuesday providing for the detention and prosecution of terrorism suspects, and the Justice Department moved immediately to request the dismissal of dozens of lawsuits filed by detainees challenging their incarceration.

Bush signed the legislation in an elaborate East Room ceremony, calling it a "vital tool" in the administration's war on terrorism. Almost immediately, Republican Party leaders charged that the measure's Democratic critics advocate freeing terrorists.

The new law thus became part of the GOP's push to preserve its congressional majority in next month's elections as well as part of the administration's continuing effort to devise a judicial process for those captured in military and counter-terrorism operations.

The law is bound to generate new and contentious legal challenges that probably will leave U.S. policies on detainees in an uncertain state. In addition to the request to throw out lawsuits by detainees seeking to have their day in court, judges will be asked to decide new legal questions about the fairness of the tribunal process. Both issues may end up before the Supreme Court.

Meanwhile, human rights groups said it was far from clear how the new law will be implemented, and the CIA made plans to ask Justice Department lawyers to review interrogation guidelines.

The legislation sets new rules for the CIA to conduct interrogations and allows for the prosecution of terrorism suspects before military tribunals. Bush said the measure enables the U.S. to bring to justice the coordinators of the Sept. 11 attacks and allows the CIA to continue an aggressive interrogation program that he said had disrupted plans for additional terrorist strikes.

"With the bill I'm about to sign, the men our intelligence officials believe orchestrated the murder of nearly 3,000 innocent people will face justice," Bush said, sitting at a table with a sign on it that said "Protecting America."

He was surrounded by military officers, members of his Cabinet, and lawmakers who helped pass the bill. Several dozen protesters outside in the rain chanted slogans branding the measure an affront to civil liberties.

The enactment of the law -- four months after the Supreme Court said that an earlier system for handling terrorism cases violated U.S. law -- was welcome news for Bush and came as casualties have mounted in Iraq and his handling of the war on terrorism has come under intensifying criticism.

The signing ceremony was part political rally for a GOP that is struggling to retain control of Congress three weeks before pivotal midterm elections. Republican leaders said the legislation showed that they were a party of strength and assailed Democrats for not supporting the measure.

"The Democratic plan would gingerly pamper the terrorists who plan to destroy innocent Americans' lives," House Speaker J. Dennis Hastert (R-Ill.) said.

House Democrats had "voted in favor of new rights for terrorists," Hastert said, adding that the Democrats had "put their liberal agenda ahead of the security of America."

Both chambers of Congress approved the legislation last month in votes largely along party lines.

In the House, 34 Democrats joined 219 Republicans in voting for the bill; 160 Democrats, seven Republicans and one independent voted against it.

In the Senate, 12 Democrats joined 53 Republicans in voting for it; one independent and one Republican joined 32 Democrats in voting against it.

Many Democrats decried the bill as a step backward on civil rights. House Minority Leader Nancy Pelosi of San Francisco criticized the law for allowing Bush to "interpret" the Geneva Convention and said court challenges would render the law useless.

"Democrats want terrorists who kill Americans tried, convicted, and punished through a constitutionally sound process that will be upheld on appeal," Pelosi said. "That goal will not be achieved by the bill President Bush signed into law today."

The Justice Department moved swiftly to enforce one of the law's most controversial provisions. Within two hours of the signing ceremony, department lawyers notified the U.S. Appeals Court in Washington that the new law eliminated federal court jurisdiction over dozens of lawsuits filed on behalf of prisoners held at U.S. military prison at Guantanamo Bay, Cuba.

Lawyers for the detainees responded with their own filing Tuesday, requesting time to present legal arguments that the new law violated the Constitution.

The detainees' lawyers, who had won victories on behalf of their clients -- Shafiq Rasul and Salim Ahmed Hamdan -- in two previous cases that went to the Supreme Court, said they were confident they would prevail again.

"We beat them in Rasul. We beat them in Hamdan. Now, they have tried to beat us in Congress. I don't think it will work," said Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has represented a number of the detainees. "They have been slapped down twice. I think they will be slapped down again."

Bush said the tribunal procedures would ensure a "full and fair trial" for terrorism suspects.

The rules guarantee the suspects access to a lawyer and make inadmissible as evidence confessions and other statements obtained through torture, although coerced testimony is admissible if the judge finds it reliable.

The administration has identified about two dozen suspects it plans to put on trial, including Khalid Shaikh Mohammed, who is accused of being the mastermind of the Sept. 11 attacks. Along with 13 other high-profile suspects, he was recently transferred from CIA custody to Guantanamo Bay.

The rules do not affect most of the estimated 435 prisoners being held at the military prison in Cuba. Unless the military decides to bring charges, most of the detainees will remain in legal limbo, without the opportunity to challenge their status.

Bush said the new interrogation provisions would allow the CIA to restart a program of tough questioning of terrorist suspects that ground to a halt more than a year ago as Congress debated legislation banning the use of torture and questions about whether rough treatment of detainees would subject operatives to prosecution for war crimes.

A senior administration official said that the CIA had not made final a list of interrogation tactics or procedures, but when it does, it will submit its new program to the Justice Department for a legal review. Once it gets the blessing of the Justice Department, the program will be brought before Congress, said the official, speaking on condition of anonymity because of the secrecy of the CIA effort.

"The CIA will have to brief its program to an oversight committee," said the senior official. "This is the beginning of the conversation, not the end."

Administration officials have refused to list any interrogation techniques that would be banned by the act, arguing that it was important to leave "ambiguity in the minds of Al Qaeda" about what the United States might do.

However, it seems clear that the most controversial of CIA interrogation techniques, including simulated drowning, extreme cold to induce hypothermia or extreme stress positions, would be outlawed, either under the provisions banning torture or the provision making cruel treatment of detainees a war crime.

"Under this law they cannot inflict suffering, mental or physical suffering," said Tom Malinowski, the Washington advocacy director of Human Rights Watch.

Although the law does not make "degrading" treatment a war crime, the act does ban such treatment. The senior administration official said determining what sorts of techniques might be allowed against alleged terrorists without violating the ban will be up to the Justice Department.

Administration officials have said there is room within the strict prohibitions of the Army Field Manual on Interrogations and the prohibitions set out in the Military Commissions Act. But some human rights advocates said under their reading of the law there were not a lot of allowed techniques in that gray area.

Elisa Massimino, the Washington director of the group Human Rights First, said that Republican senators have made clear that techniques banned by the Army Field Manual also will be outlawed by the Military Commissions Act. The Army Field Manual bans interrogation techniques based on force, stress, or pain.

"I think you have to do some pretty creative lawyering to see any daylight between those two standards," she said.