Sins of Commission

In 2006, the Supreme Court struck down the military commissions that President Bush had set up to try Guantanamo prisoners, ruling that they were not authorized by federal law and that they violated the Geneva Conventions.

A few months after the high court's ruling, a compliant Congress passed, and Bush signed, the Military Commissions Act (MCA), seeking to provide the legal backing for the commissions and ignoring an obvious alternative: trial in federal criminal court of those who actually have been charged with a crime. Despite the questions about the MCA that continue to crop up in both the federal and military legal systems, the administration has stuck by the act, which is breathtaking in the depth of its departure from the due process supposedly assured by the U.S. Constitution. At this point, the act is aimed at those outside the U.S., but there's no guarantee that the rights of U.S. citizens won't follow.

It is accurate to say, as many have, that this law is destructive of civil liberties, the Constitution, and democracy. But it does more than that. The MCA allows the president broad latitude to simply designate and detain people as "enemy combatants" indefinitely, in circumstances that thoroughly militate against accountability. Detention centers and their personnel are relatively invisible; the act affords military and CIA "interrogators" retroactive immunity from prosecution dating back a decade. The MCA also shrinks the definition of torture by naming a short list of forbidden acts (thus leaving a long list of legally defensible ones). All of this gives military jailers a virtual license to torture their prisoners with impunity.

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Sojourners Magazine September/October 2007
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