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Volume 72, Issue 47, Wednesday, October 25, 2006


New act changes way things are done

Craig Stewart
Opinion Columnist 

Constitution? What Constitution?

We often hear words like freedom, liberty and justice devalued by a myriad of politicians and talking heads with careless nonchalance. As such, I will try to leave them out of this discussion. Rather, I shall concisely and rationally explain to you, my fellow Cougars, what quietly transpired last week. Make your own judgments.

Last Tuesday, President Bush signed into law the Military Commissions Act. This act sets up military commissions to try, judge and punish alleged "enemy combatants" and "people of interest." 

What's that, you say? Don't we already do that? Yes, but not legally.

Even when trying non-citizens, the Geneva Conventions, the U.S. Constitution and the Uniform Code of Military Justice guarantee certain rights. The Military Commissions Act seeks to eliminate legal opposition to the most significant of these protections.

The highest and most important of these protections is provided by Article 1, Section 9, Clause 2 of the Constitution. Under the "Limits of Congress" section, it states: "The privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." 

We face neither a rebellion nor an invasion. (For those of you who are a little shaky on your history, habeas corpus is what requires the government to charge you with a crime and present evidence to be able to imprison you.)

The Military Commissions Act says:

"Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."

Note how the U.S. Constitution's vitally important habeas corpus protections are singled out and informally discarded as "any other habeas corpus provision."

As of last Tuesday, the government can jail you without any charges or evidence. Do you think this will never matter to you? After all, you are not a terrorist, right?

In the case of Jose Padilla, an American citizen living in Chicago, the issues became a little unclear. On the president's direct orders, the U.S. government held an American citizen in a military prison with no access to his family, his lawyer or the outside world from June 2002 until March 2004. 

Over these two years, Padilla says that he was routinely tortured through several methods including sleep deprivation, sensory deprivation and enforced stress positions. He continued to be detained and tortured for another year-and-a-half after his lawyer was finally allowed to talk to him, yet he was still not charged with any crime.

You read that right. An American citizen was held by the American military on direct orders from the president without charges for three-and-a-half years. Days before this case was finally to come before the Supreme Court, the military abruptly transferred Padilla to a civilian jail, where charges were filed against him.

Even after he was transferred into civilian custody, Padilla appealed to the Supreme Court about whether the government could hold alleged "enemy combatants" without charges. 

The Supreme Court did not accept the case, but in a similar landmark case, Hamdi v. Rumsfeld, the court found that American citizens who are imprisoned must be able to contest their detention before an impartial judge. 

Now, the Military Commissions Act would likely have prevented this case from reaching any court at all, with its provision denying any court, justice or judge's jurisdiction.

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