Liberty Lost: Frightened Congress Gives Bush Unprecedented Powers

Ann M. Schneider Oct 14, 2006

Facing mid-term elections, both houses of Congress adopted the Military Commissions Act of 2006 in September, permanently repealing habeas corpus for non-citizens and giving the president complete discretion to use whatever interrogation techniques he sees fit – short of murder and rape.

Unfortunately, Sen. John McCain (R-Ariz.) and some human rights groups appear to have been hoodwinked into retroactively legalizing some methods of torture in return for meaningless promises. While the bill says that torture is illegal, in reality, very little is prohibited. Human Rights First stated in a press release that waterboarding is now prohibited and considered a war crime. But in fact, the new law says that acts constitute torture only if they are “intended to cause extreme physical pain through the infliction of bodily injury.” Waterboarding is a psychological technique and would therefore likely be permitted.

Defining what constitutes torture was delegated to the executive. This way, the administration preserves its right to use undisclosed “alternative interrogation procedures.” An amendment requiring the CIA to submit to congressional oversight was defeated, as was a five-year sunset clause. An amendment by Democrats to restore access to the courts (habeas corpus) for those held at Guantánamo was defeated 51-49.

The new law also serves as a vehicle for the administration to retroactively immunize CIA and army interrogators against prosecutions under the War Crimes Act. Previously, violations of Geneva Article III were felonies, punishable by life in prison or death if the prisoner dies. There was no statute of limitations or pardon for war crimes. Now the definition of offenses is narrowed to make them much more difficult to prosecute. In addition, this portion of the Military Commissions Act was made retroactive to Sept. 11, 2001, so that even the worst abuses at Abu Ghraib are amnestied.

President George W. Bush’s aim in proposing this legislation was stated on Sept. 6 when he told a group of 9-11 widows, “Some of our military and intelligence personnel involved in capturing and interrogating terrorists could be at risk of prosecution under the War Crimes Act, just for doing their jobs.” The CIA was so concerned about liability for the routine use of torture at secret prisons that it ordered its personnel to stay away from the sites of the worst abuses. There is much irony in the fact that the greatest skeptics of the infamous Justice Department memos justifying torture turned out to be the CIA. Four years after administration lawyers said “it’s not torture unless it causes lasting physical injury or organ failure,” the CIA demanded and received legal immunity for its officers.

The worst feature of this new law is that the President will now be able to designate anyone – even a U.S. citizen – an unlawful enemy combatant (UEC). Taking up arms against the U.S. is no longer required. The new definition extends to anyone who has “purposely and materially supported hostilities against the United States.” We have already seen Lynne Stewart and her translators swept up in this definition. The designation of UEC can be made by any “competent tribunal,” to be appointed by the Secretary of Defense.

The new law allows the U.S. government to take away the Geneva protections from those to whom they were designed to apply. The new law says, “No unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights at his trial by military commission.”

The Bush administration has also achieved the suspension of habeas corpus for all those held as enemy combatants or unlawful combatants, effectively putting Guantánamo beyond the reach of the courts. This is exactly what the U.S. Supreme Court said in June in Hamdan v. Rumsfeld that it could not do. Justice Breyer, writing for the majority, said, “Congress has not given the Executive a blank check.” Sadly, it has now.

The first challenge to the constitutionality of the Military Commissions Act has been filed by the Center for Constitutional Rights on behalf of a man held for three-and-a-half years in a secret CIA jail. He is one of the 14 prisoners transferred to Guantánamo upon the eve of this bill’s passage. This hasty transfer to Gitmo from a black hole was apparently made to deny him the possibility of a trial in a country that still follows the Geneva Conventions.


The Bush Administration has consistently sought to expand the authority of the executive branch over the past six years. Some of the new powers that Bush gained from the Military Commissions Act of 2006 are:

■ The power to designate anyone living inside or outside of the United States an “unlawful enemy combatant” and have them detained indefinitely without being able to go before a judge or challenge their accusers in a court of law.

■ The power to decide which “alternative interrogation procedures” are torture and which are not.

■ The power to use evidence obtained through torture in trials before military tribunals if such testimony is thought to be “reliable.”

The People’s Lawyer is a project of the New York City chapter of the National Lawyers Guild ( 212-679-6018

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