Dale Mills
A new law, the Military Commissions Act, currently before the US Congress has prompted sharp opposition from some unexpected quarters — members of the US military, judiciary and congress.
The bill is the Bush administration's attempt to overturn a Supreme Court decision, in June, which held that those detained at the prison camp at Guantanamo Bay had a right to have the legality of their detention examined in US civil courts.
After that ruling, military panels were set up to review evidence against the prisoners still being held at Guantanamo. A handful of those were released and returned to their home countries as a result of these reviews, but more than 400 men still remain behind the wire.
The attempt to abolish habeas corpus, as the right to argue the illegality of detention is known, has prompted opposition to the Bush-sponsored law from some senior Republicans. Opposing the proposed law, at least in part, is prominent Republican John W. Warner of Virginia, chair of the Senate Armed Services Committee. He is being supported by at least seven other Republicans.
Also opposed are sections of the judiciary. A letter expressing "deep concern about the legality" of the proposed law was signed by nine senior retired judges including appointees of the Democrats and Republicans and sent to Congress. The judges claim that the law "threatens to strip the federal courts of jurisdiction to test the lawfulness of Executive detention at the Guantanamo Bay naval station and elsewhere outside the United States".
The judges added that "depriving the courts of habeas jurisdiction will jeopardise the judiciary's ability to ensure that executive detentions are not grounded on torture or other abuse". Civil rights activists have also condemned the proposed law.
According to Wells Dixon, an attorney who coordinates the defence of hundreds of detainees as part of the Centre for Constitutional Rights, the passage of the law would "authorise the lifelong detention of more than 400 men". New York University Law School's Jonathan Hafetz agreed, saying that the law would "create a back door for potentially lifelong detention for many individuals who are innocent and just need a hearing to prove it".
Another consequence of non-US citizens being detained at Guantanamo without access to US civilian courts is that it would not be possible for them to make effective complaints in a case of abuse or torture. There would be no one to complain to, accept the US military that is carrying out the abuse.
"Plain and simple, this bill is an invitation to more Abu Ghraibs", said Elisa Massimino, the Washington director of Human Rights First. "These provisions fly in the face of the President's assertion that detainees will be treated humanely."
Anthony Romero, from the American Civil Liberties Union, said that the proposed law would give immunity from prosecution to "civilians who subjected persons to horrific abuse ... As a result, government officials and civilian contractors who authorised or carried out water boarding, threats of death, and other abuse would get a 'get out of jail free' card under the president's bill."
Not only would the proposed law allow for abuse, or torture, to take place without legal recourse, the US government has also proposed that any evidence obtained by coercion be admissible against the accused. Some evidence may not be disclosed to the accused where there are security concerns. A detainee could face conviction and a long prison sentence, even execution, on the basis of unreliable evidence that they have not seen.
These reactionary provisions put the White House on a collision course with the military's Judge Advocates-General, all four of whom have come out publicly against the use of secret or coerced evidence.
Some legal observers believe that if the law is passed it will eventually be found to be unconstitutional, and therefore illegal. Given that it takes years to bring a case to the Supreme Court, in the meantime the White House will be able to imprison and mistreat detainees at will.