Only weeks before midterm elections would determine which party gains control of Congress, President George W. Bush signed the Military Commissions Act of 2006 into law.
Signed on Oct. 17, the new law is meant to establish the procedures of military commissions that try unlawful enemy combatants. Supporters say this will ensure that those individuals receive full and fair trials.
The act addresses the government’s detention and treatment of individuals believed to be a threat against the United States. These individuals include terror suspects imprisoned at the U.S. detention facility in Guantanamo Bay, Cuba, as well as those who have been detained both in and outside of the U.S.
One of the concerns surrounding the act is the ability to suspend habeas corpus, a writ that may be used to appear before a judge as a protection against wrongful detention. The government believes habeas corpus should apply only to criminal law, not wartime situations. The new law allows for this suspension in part because the Geneva Prisoner of War Conventions recognize the right to hold enemy combatants in detention without appearing before a federal judge.
UM College Republicans treasurer Chuck Hartwig considers enemy combatants POWs, which should be tried by a military court as opposed to a civilian one.
“It’s a good way to ensure that we’re treating POWs fairly and protecting the interests of our military,” he said.
Hartwig also said that since the terms of war are changing, it is good the president and Congress have taken the measures to institute a military tribunal system.
The bill means that there will be a set standard of procedures, but also represents a significant change in the American legal system.
Sam Terilli, a lawyer and assistant professor of journalism, explained that this act brings to an end the centuries-long Anglo-American tradition of open justice. He said that Americans have essentially lost the basic constitutional right of the individual to know why he or she is being imprisoned, as well as the right to habeas corpus.
“Habeas corpus is fundamental to American civil liberties,” Terilli said. “This bill erodes that.”
Terilli admits that he is troubled by the new law.
“On its face, it would appear to apply only to aliens and unlawful enemy combatants,” he said. “But whenever someone isn’t too sure, that is what leaves me concerned.”
George Gonzalez, an associate professor of political science, said that the law represents a fundamental threat to democratic tenets.
“This law is very autocratic,” he said, “and it violates Western political norms in a way that can be construed as the road toward a presidential dictatorship.”
Gonzalez also said that the Military Commissions Act is a law written for prosecutors, creating a parallel legal process in which the defendants have no legal rights.
While proponents say the new law is not meant to restrict the rights and freedoms of U.S. citizens, critics disagree. Residents who are not citizens could also be considered enemy combatants, and if imprisoned they could then be subjected to the terms of the act.
“I feel uncomfortable because this law goes against what I feel democracy stands for,” junior Jacqueline Collazo said. “The faith I have in this country is that people are innocent until proven guilty, and I feel that the government is overstepping its boundaries.”
A recent New York Times editorial entitled “Guilty Until Confirmed Guilty” argues that the premise of “innocent until proven guilty” no longer applies under the terms of the act. The piece claims one of the problems with the new law is it will make it more difficult to identify the real terrorists among the suspects held at Guantanamo Bay.
“One of the main reasons I’m here in America is because of the safety the country offers to its citizens,” said junior Kenny Perez, a U.S. resident who is originally from Cuba. “There are certain rights I didn’t think could just be removed, and I don’t think the president should have the power to do that,” he said.
The American Civil Liberties Union believes that the law removes important checks on the president not only because it eliminates habeas corpus, but it also fails to protect due process.
Terilli also acknowledges that the new law partially erodes the system of checks and balances.
“Federal court review is the only thing that protects us because if you have independent review you have the opportunity to be heard in court,” he said.
Some students are concerned with the apparent reduction of such checks, which are fundamental to American democracy.
“I think it violates [our] civil liberties and takes away everything the U.S. is worth and everything it stands for,” sophomore Alec Fernandez said. “It’s going against our forefathers and is giving Big Brother more power.”
As the public reacts to this new legislation, national media have reported there will likely be legal challenges. But some feel that, until it affects the rights of American citizens, amendments to the law will not be introduced.
“I think that if this law were to ever be attempted on Americans it would not pass,” said Perez. “When American citizens are affected, people begin to care more.”
Megan Ondrizek may be contacted at m.ondrizek@umiami.edu.