Damage Control: The road to undoing the deeply disturbing Military Commissions Act.

Jennifer Van Bergen

October 27, 2006

Jennifer Van Bergen is a journalist with a law degree. Her book The Twilight of Democracy: The Bush Plan for America has been called a “primer for citizenship.” She can be reached at jvbxyz@earthlink.net.

After President George W. Bush signed the controversial Military Commissions Act last week, the Justice Department wasted no time in using its new power to deny due process to the detainees swept up in the “war on terror.” Now that the bill which Sen. Patrick Leahy called “un-American” has become law, countless hours and dollars will be spent by public interest law organizations trying to undo its damage. In addition to challenges of the provisions that strip habeas corpus rights, we can expect constitutional challenges to the military commission procedures and amendments to the War Crimes Act.

The MCA is an unprecedented power grab by the executive branch. Among the Act’s worst features, it authorizes the president to detain, without charges, anyone whom he deems an unlawful enemy combatant. This includes U.S. citizens. It eliminates habeas corpus review for aliens. It also makes providing “material support” to terrorists punishable by military commission. And the military commissions' procedures allow for coerced testimony, the use of “sanitized classified information”—where the source is not disclosed—and trial for offenses not historically subject to trial by military commissions. (Terrorism is not historically a military offense; it's a crime.) Finally, by amending the War Crimes Act, it allows the president to authorize interrogation techniques that may nonetheless violate the Geneva Conventions and provides future and retroactive “defenses” for those who engage in or authorize those acts.