Not that many of you would, but in case you were thinking about penning love letters to Senators McCain, Warner and Graham, please keep in mind that their bill, The Military Commissions Act of 2006, is an extraordinarily bad one. The bill suspends habeas corpus for prisoners held outside of the United States, thus stripping them of any ability to contest the legality of their imprisonment. Additionally the bill limits the enforcement of Geneva Common Article 3 under the War Crimes Act to grave violations, changing the very definition what is a war crime. Not only does this bill not put an end to torture and indefinite detainment, it protects it.
From an excellent post by Hilzoy:
Our country ought to stand for certain values, including freedom, fairness, and the rule of law. But we do not stand for these values if we allow this bill to be passed in its current form. We do not stand for freedom if we allow our government to toss people in prison without any recourse at all. We do not stand for fairness if we do not allow them the chance to show that they are innocent, or require that the innocent be set free. And we do not stand for the rule of law if we allow our government to strip people of the right to argue that they have committed no act of aggression against us, and thus should not be imprisoned.
From a letter sent to Congress by nine former federal judges.
Finally, eliminating habeas jurisdiction would raise serious concerns under the Suspension Clause of the Constitution. The writ has been suspended only four times in our Nation’s history, and never under circumstances like the present. Congress cannot suspend the writ at will, even during wartime, but only in “Cases of Rebellion or Invasion [when] the public Safety may require it.” U.S. Const, art. I, ยง 9, cl. 2. Congress would thus be skating on thin constitutional ice in depriving the federal courts of their power to hear the cases of Guantanamo detainees. At a minimum, Section 6 would guarantee that these cases would be mired in protracted litigation for years to come. If one goal of the provision is to bring these cases to a speedy conclusion, we can assure you from our considerable experience that eliminating habeas would be counterproductive.
For two hundred years, the federal judiciary has maintained Chief Justice Marshall’s solemn admonition that ours is a government of laws, and not of men. The proposed legislation imperils this proud history by abandoning the Great Writ to the siren call of military necessity. We urge you to remove the provision stripping habeas jurisdiction from the proposed Military Commissions Act of 2006 and to reject any legislation that deprives the federal courts of habeas jurisdiction over pending Guantanamo detainee cases.
There is no reason to be mucking around with this. Despite Bush’s protests to the contrary, the law is quite well defined, and the only clarity that needs to be provided at this point involves war crimes prosecution. The current press meme portrays Senators McCain, Warner and Graham as brave rebels standing up to their President in order to preserve our fundamental rights and protect the Geneva Conventions. Nothing could be farther from the truth.
