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by Sukrit Sabhlok

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"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin

MILITARY COMMISSIONS

The order released by the President on November 13, 2001 gave effect to a system of military commissions. Administration officials have argued the ability to deliver justice via commissions is inherent in presidential power. There is a precedent in 1942, when President Roosevelt established a secret tribunal that ordered the execution of German saboteurs. But the Bush administration's commissions were deemed illegal by the Supreme Court in Hamdan v. Rumsfeld. A new system has now begun operating under the auspices of the Military Commissions Act of 2006 (MCA).

These commissions evaluate captured enemy combatants at Guantanamo Bay. Until the enactment of the MCA, the commissions operated outside of normal congressional scrutiny and avenues of appeal were severely limited. There was clearly scope for subverting the rule of law under the former regime. While Congress' legislative support of the commissions at least lends greater legitimacy to the current system, the question of where exactly presidential legal boundaries lie will require further litigation in a federal court. But the Supreme Court appears reluctant to intrude into the laws of war, and has recently refused to hear a case challenging the commission system established by the MCA.

Timothy Lynch (2006) has argued neither Congress nor the President possess sufficient constitutional authority to bring military commissions into existence. I agree with Lynch. However even assuming I didn't, the MCA is worrying because it specifically prevents "enemy combatants" from relying on the Geneva Conventions. This has raised concern over human rights, in particular, whether a fair trial is possible given the ruling in Hamdi v. Rumsfeld that hearsay evidence is permissible.

Courts may give governments the benefit of the doubt when it comes to factual matters. Justice O'Connor's determination that there must be a degree of deference to the government's "security and intelligence interests", and that prudence should be exercised in this respect, leaves the appropriate balance uncertain.

In effect, the MCA codifies the decision in Hamdi, where it was held that American citizen detainees have a right to counsel and are able to challenge their detention before an impartial judge. Thus, Executive discretion was for a time restricted to "aliens", or non-American citizens. But the ruling in Rasul v Bush has now, subject to the provisions of the MCA, established that American courts have jurisdiction to decide whether non-US citizens are wrongfully imprisoned.

Military commissions are not the appropriate forum for justice. Under the MCA, a neutral panel is to determine the status of a detainee. If an alien detainee is judged "lawful", then the military commission system does not apply. If judged "unlawful", then trial by military commission commences. This process is susceptible to miscarriages of justice, for the mere finding that one is an unlawful enemy combatant would have the effect of removing due process rights guaranteed under the Constitution. While the MCA contains a definition of terminology, the permissible bounds of the "enemy combatant" category are vague.

Ruth Wedgwood (2004) contends that regular criminal law is unsuitable due to its procedural and substantive hurdles. In war, she argues, even "first-rate intelligence" may not be able to prove beyond reasonable doubt that an individual planned to commit terrorist acts. Moreover, the risk of retaliation - against judges and jurors - is too great to be ignored. An open trial could also deliver crucial secrets to the enemy.

Such obfuscation should not mask the fundamental objective of the Constitution, which was to guarantee individual liberty. Commissions that operate outside the Uniform Code of Military Justice dilute the presumption of innocence until proven guilty; the philosophy behind the Constitution favours the courts being able to review the detention of all persons. The coming years may see the Supreme Court declare the MCA unconstitutional. It is telling that we must wait (once again) for the judiciary to act. Congress, it seems, is always happy to follow the President's lead.

INDEFINITE DETENTION

The issue of detention is difficult, primarily because the length of detention cannot be too short for there is a risk that captured suspects could rejoin enemy forces. But the Bush administration crossed a very clear line when it attempted to label American citizens enemy combatants, and in the process strip away constitutional rights.

According to the administration, American residents are not protected from being labeled unlawful enemy combatants and then subsequently flown to Guantanamo Bay to be detained, even while on American soil. As Rumsfeld v. Padilla demonstrated, the Bush administration considers US territory to be a "battlefield", hence allowing the detention of enemy combatants outside of traditional legal procedure. When the Solicitor General in Padilla was asked by the judge to elaborate on whether he considered American soil to be a combat zone, he agreed, "I can say that, and I can say it boldly".

The matter of time limits is an important one. David Hicks spent over five years in detention before being released to his country of citizenship to serve a nine-month sentence. Another detainee, Mamdouh Habib, spent three years at Guantanamo Bay but was then released with no charges filed against him. Indefinite detention is a very real possibility as the War on Terror could extend for many years. Yet under the laws of war, detention can last no longer than active hostilities.

Views from within the administration do not inspire confidence in restraint. Attorney General Gonzales recently testified that the Constitution does not assure every individual or citizen in the US the right to habeas corpus. Furthermore, in Hamdan, the government requested the court decline to hear the petitioner's challenge, lending substance to critics' claims that the administration is seeking to exempt itself from judicial review.

Just as thousands of Japanese-Americans were detained during World War II, a new era of McCarthyism aimed at Muslim fundamentalists could see innocent people denied their Constitutional rights. The attempt to deny the right to habeas corpus is made more disturbing by the emergence of photographic evidence of prisoner abuse at Abu Ghraib prison.

TORTURE

Former detainee Mamdouh Habib has claimed abusive interrogation techniques are used at Guantanamo Bay. Other secret prisons, allegedly used to torture suspects, continue to be run by the Central Intelligence Agency without proper oversight.

Leaked memos from within the Bush administration have revealed a nonchalant attitude towards torture, with government lawyers attempting to circumvent international treaties rather than upholding the individual as the central unit of ethical value. According to one Justice Department memo, "Congress can no more interfere with the president's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield". But as Healy and Lynch (2006) point out, the Constitution gives Congress powers that bear directly upon treatment of prisoners.

The Authorization for Use of Military Force (AUMF), which permits the use of all "necessary and appropriate force" against those who "planned, authorized, committed, or aided" the September 11 attacks, should be construed narrowly to prevent the President from using war-time powers for torture. To prevent further degradation of America's international reputation, Congress should use its authority under the Constitution to enact strict guidelines.

The President would then be obliged to ensure these laws are "faithfully executed", and it is likely the Supreme Court would uphold any such congressional enactment provided it does not directly interfere with the operational aspects of the Commander-in-Chief power. The President or Secretary of Defence should not be able to set the conditions of prisoner treatment, as there have been concerns raised that torture is sanctioned by senior members in the chain of command.

Attempts by the President to segregate alien combatants from judicial review have created a culture of disrespect for the principles of natural justice among military officials. This may have percolated down the chain of command, resulting in waterboarding (simulated drowning), sleep deprivation and sensory deprivation. The exact interrogation techniques approved for use have not been revealed by the Pentagon.

Naomi Klein (2005) warns against "casual amnesia", whereby the torture conducted by previous administrations - on whose precedent the Bush administration is operating - is forgotten. According to Klein, what distinguishes the present administration is not its willingness to torture, but its willingness to openly couch disregard for human rights in legal argument.

WIRETAPPING

The Bush administration's National Security Agency (NSA) has authorised wiretaps and collected other telephone data without a warrant. The Department of Justice has claimed the President has authority to do so, in spite of the provisions of the Foreign Intelligence Surveillance Act of 1978, due to Article II powers and the AUMF resolution passed in 2001.

Stephen Spruiell (2006) defends the legality of the NSA's wiretapping program. He contends critics have "yet to provide any evidence that it has been abused in the past, or to give a compelling reason for believing it will be abused in the future". But these are not the "merest hypothetical abuses", as Spruiell claims. They are an ever present danger. The onus of proof should sensibly lie on those who favour liberty diminishing measures, not on those who seek to preserve freedom. Even if the Bush administration does not abuse wiretapping measures, the precedent its actions set for future administrations will prove troublesome for the American people.

Learn more about this author, Sukrit Sabhlok.

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