Photo courtesy of Reuters
The gate is closed to the maximum security prison at Camp Delta 2 and 3 at the Guantanamo Bay U.S. Naval Base, Cuba, April 5, 2006.

The Military Commissions Act gives the government the tools they need to fight terrorism, but adversaries say the MCA limits constitutional rights and legalizes torture in the name of freedom

by MARK MAATHUIS

When a Macedonian policeman asked him for his passport, Khaled El-Masri did not realize his holiday was about to turn into a nightmare. El-Masri, a German citizen of Lebanese descent, was arrested on Dec. 31, 2003, and held for almost four weeks before he was handed over to the CIA and transferred to Afghanistan, he said. Suspected of being a terrorist, he was interrogated, threatened, drugged and beaten, he said. After five months, he was taken to Albania and released in the middle of the night. He was instructed never to tell anybody what had happened, he said.

Despite these instructions — a condition for his release, he said — El-Masri went to a U.S. court for justice. “To this day I don’t know why they arrested me,” El-Masri said. “I would like an explanation and an apology.”

His case was dismissed by a federal district court in Richmond, Va., in May 2006, after the Justice Department argued that allowing it to move forward would damage national security and expose state secrets.

American Civil Liberties Union Director Anthony D. Romero said, “if not before an American court of justice can an individual who has been wronged by the U.S. government seek justice, then where?” The ACLU appealed on El-Masri’s behalf, arguing that his lawsuit against former CIA Director George Tenet and other U.S. government officials should proceed.

El-Masri’s case is not unique. Ever since the first prisoners arrived at Guantanamo Bay on Jan. 11, 2002, there has been a battle for the legal rights of suspected terrorists. In some cases, anti-terrorist laws were reversed by the U.S. Supreme Court. Other courts, like the federal district court in Richmond, upheld those laws.

To end this legal confusion but also to protect CIA officers from possible lawsuits stemming from their questionable methods, the Military Commissions Act of 2006 was drafted. During the signing ceremony on Oct. 17, President Bush called it one of the most important pieces of legislation in the war on terror.

President Bush said the Military Commissions Act protects Americans and allows captured terrorists — unlawful enemy combatants, according to the Military Commissions Act’s definition — to be prosecuted for war crimes through a full and fair trial. It is true that the Military Commissions Act defines the CIA interrogation methods more clearly, but it limits access to courts for detainees seeking to challenge their imprisonment at Guantanamo Bay or elsewhere.

The act gives the president the freedom to disregard the Geneva Conventions in actions that fall short of grave breaches of this treaty. It defines terrorists as unlawful enemy combatants, because, unlike soldiers, they are not fighting for a country, according to a White House statement. Opponents of the Military Commissions Act criticized it for its terminology, its alleged legal basis for torture and, most importantly, its disposal of the right of habeas corpus.

Jen Nessel, a spokesperson for the Center for Constitutional Rights, dismissed the definitions in the Military Commissions Act as “vague.” It defines any person endangering the United States or its allies who is not a lawful enemy combatant as an unlawful enemy combatant.

The administration’s decision to use this term is an apparent response to Supreme Court rulings Hamdan v. Rumsfeld and Rasul v. Bush, which ruled that the Geneva Conventions apply to lawful enemy combatants. Under this ruling, interrogators using certain questioning methods run the risk of prosecution under the War Crimes Act, which outlaws violations of the Geneva Conventions. The Military Commissions Act, with its new definition, clearly seeks to limit this risk.

In his speech at the signing ceremony, President Bush stressed the fact that the Military Commissions Act does not allow torture or cruel and inhumane treatment and would not be in violation of the Geneva Conventions’ obligations. He said the Military Commissions Act helps interrogators, because questioning methods are spelled out to make a clear distinction between legal and illegal techniques.

The Military Commissions Act’s definition of torture, however, differs widely from what is internationally accepted. It describes torture and cruel or inhumane treatment as the intentional infliction of severe or serious physical or mental pain or suffering. It must involve a substantial risk of death and extreme physical pain. According to the Military Commissions Act, this is the only behavior punishable under the War Crimes Act as a grave breach of the Geneva Conventions.

Professor Alfred W. McCoy, author of “A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror,” criticized the Military Commissions Act’s definition, because it does not ban psychological methods. In an interview on a Democracy Now! radio program, he said the Military Commissions Act leaves room for sleep deprivation, isolation and water boarding — a technique which entails pouring water on a prisoner tied to a board with a towel covering his face, creating a sensation of drowning.

“Simply put, this legislation’s highly restricted standard for severe mental suffering does not prohibit any aspect of the sophisticated torture techniques that the CIA has refined into a total assault on the human psyche,” he said.

A Military Commissions Act fact sheet, published on the White House’s Web site, states that information derived from terrorists in CIA custody has played a role in the capture or questioning of nearly every senior al-Qaida member or associate detained by the United States and its allies since the beginning of this program.

“The White House thought interrogations under the Geneva Conventions wouldn’t produce good enough results,” said civil liberties lawyer, Joseph Margulies. He is the author of “Guantanamo and the Abuse of Presidential Power,” and was lead counsel in Rasul v. Bush, which ruled that Guantanamo detainees are entitled to judicial review.

Margulies suggested that the Bush administration’s detention policy expanded the intelligence-gathering process implemented after Sept. 11, 2001, because the government “perceives 9/11 to be an intelligence failure.” As a result, the administration focused on gathering intelligence to avoid future attacks, Margulies said. “The Department of Defense and the CIA developed an interrogation model of creating an environment that they believe would allow them to extract this information that they thought was necessary to keep us safe.”

The Military Commissions Act also limits the avenues of judicial review for non-citizens held in U.S. custody. Adversaries call this aspect of the Military Commissions Act the disposal of the right of habeas corpus. Literally meaning “you must have the body,” habeas corpus requires the government to bring a prisoner –the “body” — before a judge to hear the legal grounds of his imprisonment. The opinions on this subject are also divergent.

Sen. Lindsey Graham (R-S.C.) said the unique character of the war on terror demands a new approach, in military and legal terms. He said he wants to ban habeas corpus cases for detainees suspected of terrorism, because federal judges are not competent enough to determine who is an enemy combatant. “I believe that decision belongs to the military,” he said.

In contrast, Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, called the Military Commissions Act a lesson in how not to legislate. “Congress was wrong to suspend the great writ of habeas corpus, a keystone of American liberty, in order to avoid judicial review that prevents government abuse. That law needlessly undercuts our freedoms and values,” he said in a statement.

On the first day of the new Congress, Sen. Leahy reintroduced the “Habeas Corpus Restoration Act of 2006.” In December of last year, after its first introduction by the former chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-Pa.), the bill fell three votes short. “Obviously, the Republican majority did not buy it,” said Tracy Schmaler, the senator’s communications director. Sen. Leahy said he hopes the new Congress will reconsider the matter and revitalize the tradition of checks and balances.

Sen. Richard J. Durbin (D-Ill.), chairman of the Senatorial Subcommittee on the Constitution, Civil Rights and Property Rights, said the disposal of habeas corpus is not consistent with the principle of justice. One of the Senator’s aides, who spoke on the condition of anonymity, said suspects could be in detention until the end of the war on terror. “Basically, people can be detained forever without knowing why.”

For Khaled El-Masri, the nightmare of detention is over, but the uncertainty of whether he can get justice and answers to his many questions remains. He still believes in the American legal system and hopes other imprisoned people will benefit from his case, he said. “I simply want to have my old life back and feel secure again.”