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Released 18 October 2006  By Center for Constitutional Rights (CCR)


Center for Constitutional Rights (CCR)
October 17, 2006

The Center for Constitutional Rights (CCR) denounced President Bush's signing into law of the Military Commissions Act (MCA) on October 17, 2006. The final version of the bill emerged only four days before the Senate's 11th hour vote. Although President Bush declared that "time was of the essence" when he called for the legislation, he has waited nearly two weeks to sign it into law. Congress has once again been cowed into doing the President's bidding and abdicated their Constitutional powers in the process, say attorneys.

The new law strips the right of non-citizens to seek review of their detention by a court through the filing of a writ of habeas corpus, the venerated legal instrument that for centuries has protected people from arbitrary detention, disappearance and indefinite detention without charge. The Act is also meant to erase the hundreds of habeas corpus petitions that CCR and others have brought on behalf of many of the 450 men being held at Guant namo Bay, a move already once denied by the Supreme Court.

Further, the MCA dramatically expands the President's powers in an array of profoundly troubling ways, including permitting him to determine what constitutes torture and who may be labeled an "unlawful enemy combatant" and therefore detained indefinitely. Such scope means that non-citizens, such as those unjustifiably rounded up in sweeps after 9/11 in the U.S., could be held without charge or trial. U.S. citizens deemed to have "materially supported" hostilities against the United States could be held as enemy combatants as well. Once in U.S. custody, the law allows detainees to be subjected to stress positions, temperature extremes, sleep deprivation, and possibly waterboarding. It also defines sexual violence crimes so narrowly that some of the outrages of Abu Ghraib, such as forced nudity, would not be punishable, and defines rape and sexual abuse in a manner that is inconsistent with international law, turning back the clock on the hard-fought victories of survivors of sexual violence. At the same time, the bill provides retroactive immunity for U.S military and intelligence officials for the torture and abuse of detainees, including the widely condemned horrors which occurred at Abu Ghraib and Guant namo.

Characterizing the new law as "an assault on the Constitution," CCR Executive Director Vincent Warren said, "By trading our liberty for a false sense of security, Congress has effectively granted the President the power of tyrants to undermine the foundations of Democracy." He added, "CCR intends to challenge this outrage at every turn, using every tool at our disposal, until we reverse this affront to the rule of law."
Further, Warren pointed out that under this administration's lawless programs, innocent people like CCR client rendition victim Maher Arar-who was recently cleared of any links to terrorism-can be jailed and tortured with no recourse.

CCR has already filed the first new cases to challenge the stripping of habeas corpus: Mohammed v. Rumsfeld, a habeas petition on behalf of 25 men detained at Bagram Air Force Base; and Khan v. Bush, a habeas petition on behalf of Majid Khan, a Baltimore man held in secret by the CIA for nearly three years until President Bush transferred him to Guant namo in early September. Both cases are in the D.C. District Court.

The law will likely also be tested in two consolidated cases brought on behalf of Guant namo detainees currently pending before the U.S. Court of Appeals, Al Odah v. United States of America and Boumediene v. Bush. These cases represent the first 13 habeas petitions filed on behalf of Guant namo detainees and challenge the legality of the detention of 53 men. The initial appeal was argued on September 8, 2005, and the three-panel court has yet to issue its decision.

According to CCR legal director Bill Goodman, the provision of the MCA that strips the right of habeas corpus is a direct violation of the suspension clause of the U.S. Constitution because it denies non-citizens a meaningful opportunity to challenge the legality of their detention. The clause states that the writ of habeas corpus can only be suspended "in Cases of Rebellion or Invasion." Goodman said recent reports of innocent men being released from Guant namo underscore the importance of moving quickly to defeat this law:

"From Afghanistan to Spain and Germany to Pakistan, innocent men have been returned home to their families. We know, as does the Bush Administration, that many more of the roughly 450 men still held at Guant namo are also innocent. To deny them the right to make their case and to win their freedom, is not only immoral and illegal, but undermines the concepts of liberty and democracy that this country was built on."
A more detailed review of the legal issues raised by the stripping provision of the Act and the legal process that may ensue is attached.

MCA Signing Briefing Paper (PDF) 220KB

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