A Dangerous New Order
The New York Times
October 19, 2006
Once President Bush signed the new law on military tribunals, administration officials and Republican leaders in Congress wasted no time giving Americans a taste of the new order created by this unconstitutional act.
Within hours, Justice Department lawyers notified the federal courts that they no longer had the authority to hear pending lawsuits filed by attorneys on behalf of inmates of the penal camp at Guantanamo Bay. They cited passages in the bill that suspend the fundamental principle of habeas corpus, making Mr. Bush the first president since the Civil War to take that undemocratic step.
Not satisfied with having won the vote, Dennis Hastert, the speaker of the House, quickly issued a statement accusing Democrats who opposed the Military Commissions Act of 2006 of putting ''their liberal agenda ahead of the security of America.'' He said the Democrats ''would gingerly pamper the terrorists who plan to destroy innocent Americans' lives'' and create ''new rights for terrorists.''
This nonsense is part of the Republicans' scare-America-first strategy for the elections. No Democrat advocated pampering terrorists -- gingerly or otherwise -- or giving them new rights. Democratic amendments to the bill sought to protect everyone's right to a fair trial while providing a legal way to convict terrorists.
Americans will hear more of this ahead of the election. They also will hear Mr. Bush say that he finally has the power to bring to justice a handful of men behind the 9/11 attacks. The truth is that Mr. Bush could have done that long ago, but chose to detain them illegally at hidden C.I.A. camps to extract information. He sent them to Guantanamo only to stampede Congress into passing the new law.
The 60 or so men at Guantanamo who are now facing tribunals -- out of about 450 inmates -- also could have been tried years ago if Mr. Bush had not rebuffed efforts by Congress to create suitable courts. He imposed a system of kangaroo courts that was more about expanding his power than about combating terrorism.
While the Republicans pretend that this bill will make America safer, let's be clear about its real dangers. It sets up a separate system of justice for any foreigner whom Mr. Bush chooses to designate as an ''illegal enemy combatant.'' It raises insurmountable obstacles for prisoners to challenge their detentions. It does not require the government to release prisoners who are not being charged, or a prisoner who is exonerated by the tribunals.
The law does not apply to American citizens, 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. It further damages the nation's reputation and, by repudiating key protections of the Geneva Conventions, it needlessly increases the danger to any American soldier captured in battle.
In the short run, voters should see through the fog created by the Republican campaign machine. It will be up to the courts to repair the harm this law has done to the Constitution.