How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy the Constitution and all our rights, Part II

In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), Hamdan petitioned for a writ of habeas corpus, claiming that the military commissions set up by the Bush administration to try detainees at Guatanamo Bay, "violate both the Uniform Code of Military Justice and the four Geneva Conventions." In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay. The Court effectively agreed with Hamdan, declaring that trying the detainees under the Guantanamo military commission (also known as the tribunal) was illegal under U.S. law and the Geneva Conventions.

Quoting the judgment (Paragraph 4, Page 4): "The military commission at issue lacks the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

This ruling presented the Bush administration with the risk of liability for war crimes. The War Crimes Act of 1996, passed by Congress and signed into law by President Clinton, defines a war crime to include a "grave breach of the Geneva Conventions". All the Conventions consider a "grave breach" to be an act "...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health." Therefore, though the Bush administration tried to get around the legal protections of prisoner of war status by calling the detainees "enemy combatants", the administration was still subject to judicial oversight. If the administration committed a "grave breach" of the Geneva Conventions, they could be held liable.

To address this legal dilemma, on September 29, 2006 Congress approved the Military Commissions Act of 2006, a bill that would suspend habeas corpus for any alien determined to be an unlawful enemy combatant engaged in hostilities or having supported hostilities against the U.S., by a vote of 65-34. President Bush signed the Military Commissions act into law on October 17, 2006. This legislation stripped the right of habeas corpus from the detainees. It also took away judicial jurisdiction.

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Section 1005(e)(1), 119 Stat. 2742.

On February 20, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the Military Commissions Act in a 2-1 decision in the case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the appeal.

There is a Catch-22 attached to the Military Commissions Act. Under it, the law restricts habeas corpus appeals for only those aliens detained as enemy combatants or awaiting such determination. However, after such a determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warranted the detention. If the status is upheld, then their imprisonment is lawful. If not, then the government can change the prisoner's status to something else and there would be no restriction on habeas corpus. There is, however, no legal time limit that would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

The rules guiding a military commission are like Alice through the Looking Glass. They are a mirror-image of the guiding principle that you are innocent until proven guilty. It's a kangaroo court:

• The accused are not allowed access to all the evidence against them. The presiding officers are authorized to consider secret evidence the accused have no opportunity to refute.
• It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques.
• The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning and without explanation.
• The proceedings may be closed at the discretion of the Presiding Officer so that the commission may discuss secret information.
• The accused are not permitted a free choice of attorneys as they can only use military lawyers or those civilian attorneys eligible for secret security clearance.

And for a final irony, because the accused are charged as enemy combatants, former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of release.

By labeling detainees of the "War on Terror" enemy combatants, the Bush administration did an end run around the Constitution and the Geneva Conventions. You are guilty until proven innocent, and even if you do prove your innocence, you have no guarantee of freedom. The state can hold you indefinitely, without charge, without legal recourse, and without hope.

You may say at this point, well, that's them, the aliens, the non-citizens. Didn't Hamdi v. Rumsfeld protect our right of habeas corpus?

On January 17, 2007, Attorney General Alberto Gonzales asserted in Senate testimoney that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee the habeas corpus right to U.S. citizens or residents.

Therefore, the lack of rights enshrined in the Military Commissions Act could be extended to U.S. citizens and upheld if left unchecked.