“This law does not apply to American citizens,” the
Times editorial stated, “but it does apply to other legal United States
residents. And it chips away at the foundations of the judicial system
in ways that all Americans should find threatening.” [NYT,
Oct. 19, 2006]
However, the Times analysis appears to be far too
gentle. While it’s true that some parts of the
Military Commissions Act of 2006 target non-citizens, other sections
clearly apply to U.S. citizens as well, putting citizens inside the same
tribunal system with resident aliens and foreigners.
“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,” according
to the law, passed by the Republican-controlled Congress in September
and signed by Bush on Oct. 17.
“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 ... shall be punished as a military commission
… may direct. …
If the Times is correct that “this law does not
apply to American citizens,” why does it contain language referring to
“any person” and then adding in an adjacent context a reference to
people acting “in breach of an allegiance or duty to the United States”?
Who has “an allegiance or duty to the United
States” if not an American citizen? That provision would not presumably
apply to Osama bin Laden or al-Qaeda, nor would it apply generally to
foreign citizens. This section of the law appears to be singling out
Though the new law specifically strips non-U.S.
citizens of habeas corpus – the right to a fair trial – American
citizens caught up in Bush’s legal system also would be denied the right
to challenge their incarceration.
Besides allowing for “any person” to go into Bush’s
system, the law prohibits detainees once inside the system from
appealing to the traditional American courts until a defendant is fully
prosecuted and sentenced, which could translate into an indefinite
imprisonment since there are no timetables for Bush’s tribunal process
to play out.
The law states that once a person is detained, “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
That court-stripping provision – barring “any claim
or cause of action whatsoever” – would seem to deny American
citizens habeas corpus rights just as it does for non-citizens.
If a person can’t file a motion with a court, he can’t assert any
constitutional rights, including habeas corpus.
Other constitutional protections in the Bill of
Rights – such as a speedy trial, the right to reasonable bail and the
ban on “cruel and unusual punishment” – would seem to be beyond an
American detainee’s reach as well.
Though the New York Times suggests that the new law
“chips away at the foundations of the judicial system,” the law actually
seems to obliterate the old judicial system.
By putting detainees, apparently including American
citizens outside the U.S. constitutional process, Bush’s system makes a
mockery of the Sixth Amendment in particular. It reads:
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed … and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; [and] to have compulsory
process for obtaining witnesses.”
By contrast, in Bush’s system, there are no
guarantees of either a speedy or a public trial. Secrecy dominates in a
process run by U.S. military officers whose careers depend on the favor
of the Commander in Chief.
Under the new law, the military 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
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
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 sensitive matter.
In effect, what the new law appears to do is to
create a parallel “star chamber” system for the prosecution,
imprisonment and elimination of enemies of the state, whether those
enemies are foreign or domestic.
The Times editorial writers might also take into
account the circumstances under which Bush is likely to execute his new
powers. Imagine, for example, a terrorist incident or a threat of one
somewhere in the United States. Amid public anger and fear, Bush or some
future President could begin rounding up citizens and non-citizens
Once these detainees are locked up at Guantanamo
Bay or some other prison facility, they could be held incommunicado
and denied access to civilian courts under the law’s court-stripping
It could take years before the U.S. Supreme Court
even addresses these detentions and – given the increasingly right-wing
make-up of the Court – there would be no assurance that the justices
wouldn’t endorse the President’s extraordinary powers.
The Times also might want to take note of the
curious provision in the law that would jail “any person” who “collects
or attempts to collect information by clandestine means or while acting
under false pretenses, for the purpose of conveying such information to
an enemy of the United States.”
Since the Bush administration and its political
allies often have accused the New York Times of collecting and
publishing information, from confidential sources, that is helpful to
U.S. enemies – for instance, the stories about Bush’s secret wiretapping
program – this provision arguably could apply to Times reporters and
This “spying” provision not only puts alleged
offenders into Bush’s special legal system but it could result in the
offenders being sentenced to death.
So, before assuring American citizens that they’re
safe from Bush’s draconian system, the Times editors might check on why
these “any person” provisions were put into the law. For more than two
centuries, the civilian U.S. legal system has handled similar crimes,
including allegations of spying and charges of Americans aiding foreign
Yet now, under the cloak of setting up military
tribunals to try al-Qaeda suspects and other so-called “unlawful enemy
combatants,” Bush and the Republican-controlled Congress have
effectively created a parallel legal system for “any person” – American
citizen or otherwise – who crosses some line and becomes an enemy of the
The Times editors may believe that to raise these
concerns is alarmist. But over the past six years, Bush and his
administration have routinely stretched legal language to aggrandize
their power, not the other way around.
There are a multitude of reasons to think that Bush
will now interpret every legal ambiguity in the new law in his favor, as
granting him the broadest possible powers over people he perceives as
Robert Parry broke many of the Iran-Contra
stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from
Watergate to Iraq, can be ordered at
secrecyandprivilege.com. It's also available at
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine,
the Press & 'Project Truth.'