The Military Commissions Act of 2006 (MCA) was signed into law by President Bush on Oct. 17, 2006--just days before the Republicans were swept out of Congressional power. The MCA is an egregious assault on American civil liberties equal to the forced internment of American citizens of Japanese ancestry in 1942. It is an attack on the US Constitution and on every American. It must be repealed.

Following Sept. 11, 2001, the Bush Administration arrested and detained thousands of people, some of whom are still held captive without trial or even charges. They have not seen a lawyer. Some have been tortured. One prisoner, Salim Ahmed Hamdan, filed for a writ of habeas corpus. The administration argued that the prisoners were "unlawful enemy combatants" and therefore could not file for a writ and could be held indefinitely until tried by military tribunals. On June 29, 2006, the Supreme Court ruled against the administration. The court said that prisoners held by the United States were indeed under the jurisdiction of the court and that the proposed non-judicial military tribunals were illegal under both the Uniform Code of Military Justice (UCMJ) and the Geneva Convention. To circumvent the Supreme Court ruling, the administration concocted the MCA to create a bit of Congressional "window dressing" on actions it was already carrying out. The act has yet to be challenged in court.

The MCA establishes military tribunals and their jurisdiction, and limits the rights of the accused, including the very important right of habeas corpus. Habeas corpus is a legal principle established during the Middle Ages. It literally means "If you have the body." Prisoners jailed by some local lord or sheriff could appeal to the king to issue a writ of habeas corpus, which basically was an order from the king to the jailer saying, "If you have the prisoner in your custody, present him before the king's court to justify why you are holding him." Habeas corpus is a fundamental legal right in Western jurisprudence that protects people from illegal detention by authorities. (For more information, see www.lectlaw.com/def/h001.htm.)

A huge outcry from civil libertarians protested the passage of the MCA. However, this is not the first time in our history that the right of habeas corpus has been suspended. Even our Constitution contains a loophole in Article 1, section 9: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Indeed, habeas corpus was suspended on April 27, 1861, during the American Civil War by President Lincoln in Maryland and parts of Indiana. He did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. He was also motivated by requests from Army generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was overturned by the Supreme Court. Ominously, Lincoln ignored the court's order.

In 1864, the Supreme Court again ruled that the suspension of the writ of habeas corpus did not empower the president to try and convict citizens before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court cases of the American Civil War that dealt with wartime civil liberties and martial law.

In spite of the clear legal limitations set by the Supreme Court, the UCMJ, the Geneva Convention, and international treaties, the Bush Administration has nevertheless incarcerated thousands of people, swept them off to secret prisons--so-called "black sites"--with no recourse or legal protection. Hiding such prisoners is a war crime in international law, but that didn't stop former Defense Secretary Rumsfeld and current Secretary of State Condoleezza Rice from lying about secret prisons. Yet prisoners released from them have verified their existence. One example is Khalid El-Masri, a German citizen abducted by the CIA in Europe and tortured in Afghanistan at a secret prison there called the "Salt Pit." El-Masri was later released after several months when the CIA concluded they had a case of mistaken identity. He had no lawyer, no trial, no charges, and has no recourse or compensation. He was taken by mistake! He was completely innocent. These practices are identical to the old Soviet gulags, the Nazi "nacht und nebel" arrests, and the "disappearances" popular with Latin American dictators.

The MCA is careful to state that it applies only to "alien unlawful enemy combatants" and not to American citizens. However, who is and who is not an "alien unlawful enemy combatant" is solely up to a military Combatant Status Review Tribunal which meets behind closed doors. The tribunal answers only to the President or the Secretary of Defense. If they can reclassify prisoners of war as "unlawful enemy combatants," they can just as easily reclassify citizens as aliens. Under the MCA, a US citizen on American soil can be arrested by secret agents and jailed without habeas corpus or any other legal recourse. She or he can appeal only to the Secretary of Defense or the President, but not to a court.

Sound impossible? By no means. It happened to Jos Padilla, an American citizen jailed for three years as a suspected "unlawful enemy combatant." He was held without charge, without visitors or attorney, and under extreme torture. When the Supreme Court threatened to take up the case, the Bush Administration tried to indict him on lesser charges and transfer him to a civilian court, so that their military tribunal system would not be questioned by the justices. He is still imprisoned, by the way, and he is still being denied habeas corpus rights. Furthermore, there is no time deadline for the Combatant Status Review Tribunal to hear a case. It could simply turn a deaf ear to prisoners and they would have no place else to go. Anybody, including American citizens, can be locked away forever.

Anthony Romero, American Civil Liberties Union Executive Director, said in an Oct. 17 ACLU press release, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."

Besides violating the Constitutional guarantee of habeas corpus, the MCA violates the Constitutional prohibition on ex post facto laws. These are laws that make legal or illegal actions that happened before the law was passed. The MCA gives jurisdiction to military tribunals over offenses committed "before, on, or after September 11, 2001." The act also exonerates the US administration for its illegal acts "before, on, or after" Oct. 17, 2006. This provision gives cover to the CIA agents and government officials who approved or committed illegal arrest, torture, or other abuses.

Finally, the MCA allows the US president to be the sole interpreter of the Geneva Convention, and he alone determines what will happen to prisoners. How comfortable should that make our brave soldiers if they are captured? If Bush can reinterpret the Geneva Convention, why not North Korea's Kim Jung Il? Anything we do to tamper with international law can come back to bite us with a vengeance.

The Military Commissions Act of 2006 is a greater threat to Americans, to the US Constitution, and to our cherished civil liberties than all the terrorists and rogue nations in the world. The most patriotic action that the new Democratically-controlled Congress can take to defend America is to repeal this heinous law and restore the writ of habeas corpus. --Janice Van Cleve; Copyright 2006.