SHAME ON US ALL
By Robert Parry
October 18. 2006
History should record October 17, 2006, as the reverse of July 4, 1776.
From the noble American ideal of each human being
possessing “unalienable rights” as declared by the Founders 230 years
ago amid the ringing of bells in Philadelphia, the United States
effectively rescinded that concept on a dreary fall day in Washington.
At a crimped ceremony in the East Room of the White House, President
George W. Bush signed the Military Commissions Act of 2006 while sitting
behind a sign reading “Protecting America.”
On the surface, the law sets standards for harsh interrogations,
prosecutions and executions of supposed terrorists and other “unlawful
combatants,” including al-Qaeda members who allegedly conspired to
nearly 3,000 people on Sept. 11, 2001.
“It is a rare occasion when a President can sign a bill he knows will
save American lives,” Bush said. “I have that privilege this morning.”
But the new law does much more. In effect, it creates a parallel “star
chamber” system of criminal justice for anyone, including an American
citizen, who is suspected of engaging in, contributing to or acting in
support of violent acts directed against the U.S. government or its
allies anywhere on earth.
The law strips “unlawful combatants” and their alleged fellow-travelers
of the fundamental right of habeas corpus, meaning that they can’t
challenge their imprisonment in civilian courts, at least not until
are brought before a military tribunal, tried under special secrecy
rules and then sentenced.
One of the catches, however, is that with habeas corpus suspended these
suspects have no guarantee of a swift trial and can theoretically be
jailed indefinitely at the President’s discretion. Given the endless
the “global war on terror,” suspects could disappear forever into the
dark hole of unlimited executive authority, their fate hidden even from
While incarcerated, the “unlawful combatants” and their cohorts can be
subjected to coercive interrogations with their words used against them
if and when they are brought to trial as long as a military judge
The military tribunals also could use secret evidence to prosecute a
wide range of “disloyal” American citizens as well as anti-American
non-citizens. The procedures are similar to “star chambers,” which have
been employed historically by absolute monarchs and totalitarian states.
Even after the prosecutions are completed, the President could keep
details secret. While an annual report must be made to Congress about
the military tribunals, the President can conceal whatever information
he chooses in a classified annex.
When Congress was debating the military tribunal law in September, some
Americans were reassured to hear that the law would apply to non-U.S.
citizens, such as legal resident aliens and foreigners. Indeed, the law
does specify that “illegal enemy combatants” must be aliens who
allegedly have attacked U.S. targets or those of U.S. military allies.
But the law goes much further when it addresses what can happen to
people alleged to have given aid and comfort to America’s enemies.
According to the law’s language, even American citizens who are accused
of helping terrorists can be shunted into the military tribunal system
where they could languish indefinitely without constitutional
“Any person is punishable as a principal under this chapter who commits
an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission,” the law states.
“Any person subject to this chapter who, in breach of an allegiance or
duty to the United States, knowingly and intentionally aids an enemy of
the United States, or one of the co-belligerents of the enemy
U.S. military allies, such as Great Britain and Israel], shall be
punished as a military commission … may direct. …
“Any person subject to this chapter who with intent or reason to believe
that it is to be used to the injury of the United States or to the
advantage of a foreign power, collects or attempts to collect
clandestine means or while acting under false pretenses, for the purpose
of conveying such information to an enemy of the United States, or one
of the co-belligerents of the enemy, shall be punished by death or such
other punishment as a military commission … may direct. …
“Any person subject to this chapter who conspires to commit one of the
more substantive offenses triable by military commission under this
chapter, and who knowingly does any overt act to effect the object of
conspiracy, shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military commission …
may direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a military commission … may direct.”
In other words, a wide variety of alleged crimes, including some
specifically targeted at citizens with “an allegiance or duty to the
United States,” would be transferred from civilian courts to military
where habeas corpus and other constitutional rights would not apply.
Secrecy, not the principle of openness, dominates these curious trials.
Under the military tribunal law, a judge “may close to the public all or
a portion of the proceedings” if he deems that the evidence must be kept
secret for national security reasons. Those concerns can be conveyed to
the judge through ex parte – or one-sided – communications from the
prosecutor or a government representative.
The judge also can exclude the accused from the trial if there are
safety concerns or if the defendant is disruptive. Plus, the judge can
admit evidence obtained through coercion if he determines it “possesses
sufficient probative value” and “the interests of justice would best be
served by admission of the statement into evidence.”
The law permits, too, the
introduction of secret evidence “while protecting from disclosure the
sources, methods, or activities by which the United States acquired the
evidence if the military judge finds that ... the
evidence is reliable.”
During trial, the prosecutor would have the additional right to assert a
“national security privilege” that could stop “the examination of any
witness,” presumably by the defense if the questioning touched on any
The prosecution also would retain the right to appeal any adverse ruling
by the military judge to the U.S. Court of Appeals in the District of
Columbia. For the defense, however, the law states that “no court,
justice, or judge shall have jurisdiction to hear or consider any claim
or cause of action whatsoever … relating to the prosecution, trial, or
judgment of a military commission under this chapter, including
challenges to the lawfulness of procedures of military commissions.”
Further, the law states “no person may invoke the Geneva Conventions or
any protocols thereto in any habeas corpus or other civil action or
proceeding to which the United States, or a current or former officer,
employee, member of the Armed Forces, or other agent of the United
States is a party as a
source of rights in any court of the United States or its States or
In effect, that provision amounts to a broad amnesty for all U.S.
officials, including President Bush and other senior executives who may
have authorized torture, murder or other violations of human rights.
Beyond that amnesty provision, the law grants President Bush the
authority “to interpret the meaning and the application of the Geneva
In signing the Military
Commissions Act of 2006, Bush remarked that “one of the terrorists
believed to have planned the 9/11 attacks said he hoped the attacks
would be the beginning of the end of America.” Pausing for dramatic
effect, Bush added, “He didn’t get his wish.”
Or, perhaps, the terrorist did.