A new law threatens irreparable harm to that which makes this country great and what it formerly represented. On Sept. 28, a New York Times editorial described this new law as “a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.”

I hope you will do what you can to help avoid the damage otherwise on its way as a result of this law. Many commentators such as I are concerned because U.S. senators and representatives — some well meaning, some just careless — have ignored history and human nature and enacted a law that is a clear and present danger to us all. That statement is not hyperbole; it is fact. That some of those responsible for this threat did so with the best of intentions makes the situation perhaps more tragic than outrageous — but what difference will that make if permanent damage to our country is caused?

The law in question is a federal statute with the innocuous title “The Military Commissions Act of 2006.” President George W. Bush sought its enactment and on Oct. 17 signed it into law. Unfortunately, this particular statute is about much more than just military commissions. Instead, it substantially weakens the application of the Geneva Conventions to the United States; it substantially threatens habeas corpus; it substantially denies access to U.S. courts by persons who are lawful residents of the United States but not citizens; indeed it might, if literally interpreted, deny access to U.S. courts by U.S. citizens. It can be explained only as the product of the hysteria of legislators who acquiesced to it and the cynical arrogance of those who wrote it. In their effort to assure convictions of all “enemy combatants” imprisoned by the United States, Congress has created an abomination.

To appreciate this statement, you have to have some respect and reverence for those who, during the past 230 years, have fought and died so our country will be based upon the rule of law instead of government might. That basis is seriously threatened.

Habeas Corpus

The concept of habeas corpus dates from 1304 in England. A writ of habeas corpus is a court order. It commands a prison official holding a detainee to bring the prisoner to the court. The concept is the most important protection of individual freedom against arbitrary government action. Implicit in it is the power of a court to determine the validity of a prisoner’s detention. Once the prisoner has been brought to the court, it can be determined whether that person has been imprisoned lawfully. If courts lack that power, people can be held indefinitely, without trial.

In the 1969 U.S. Supreme Court case of Harris v. Nelson, the court recognized that “[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action … [and must be] administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.”

However, Section 7 of the Military Commissions Act prescribes that: “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In other words, the right to make a determination of who is an “unlawful enemy combatant” has been taken away from the U.S. courts by this new law.

The term “unlawful enemy combatant” is defined by this law to include “a person who has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” Note that the determination as to whether someone is an unlawful alien combatant — which can be made by Secretary of Defense Donald Rumsfeld, his successor or someone he appoints — is a fact that cannot be challenged in a U.S. court. You might say no U.S. citizen could be imprisoned under this law without a trial and indefinitely, but if the very fact that someone is an unlawful alien combatant cannot be challenged in court, what would stop the government from taking this step?

In the debate about this law, Rep. David Wu of Oregon offered this scenario: “Let us say that my wife, who is here in the gallery with us tonight, a sixth-generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, ‘I am a U.S. citizen.’ That is a jurisdictional fact under this statute, and she will not have recourse to the courts. She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.”

When Wu refers to an “article 3 court,” he’s referring to a court created under Article III of the U. S. Constitution. I think his statement, quoted above, might become an accepted interpretation of the Act.

The Geneva Conventions

The Geneva Conventions are actually four treaties governing the conduct of war, which, as of this year, have been ratified by 194 countries, including the United States. The effort to formulate rules for “civilized warfare” began in 1864. The Geneva Conventions are in essentially the same form as they were in 1949.

Section 5 of the Military Commissions Act restricts the application of the Geneva Conventions thusly: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” Note that this statute uses the term “person” instead of “alien” or “unlawful enemy combatant.” The new law defines the term “alien” as “a person who is not a citizen of the United States.” By using “person” instead, the liklihood that a U.S. citizen eventually will be labeled an “unlawful enemy combatant” is substantial.

The Military Commissions Act prevents the application of the Geneva Conventions to the decisions of the U.S. government in its dealings with alleged unlawful enemy combatants. Persons who are legal residents of the United States, as well as foreign citizens living in their own countries, can be summarily arrested and confined in military prisons for indefinite periods without any right to appeal. This label can be affixed to anyone the U.S. government chooses, without the ability of the courts to determine the validity of the label.

Of greatest concern is that the Military Commissions Act authorizes the U.S. government to torture prisoners held under its terms. The act authorizes the president to determine what interrogation techniques he deems appropriate and goes on to prescribe that his choices cannot be challenged. He doesn’t have to provide to anyone a list of the names of the persons held as alleged unlawful enemy combatants.

The War Crimes Act of 1996 incorporated the Geneva Conventions into federal criminal law. A violation of “Common Article 3” of the Geneva Conventions was labeled a war crime punishable by fine, imprisonment for life or any term of years, or both. If death resulted to the victim, the perpetrator also was subject to the penalty of death.

Now Section 6 of the Military Commissions Act modifies that reference as follows: “The President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” Thus the president has the power to “interpret” the Geneva Conventions. The act’s effective date is to be applied retroactively to November 26, 1997, so perpetrators of several categories of what were then war crimes at the time they were committed can no longer be punished under the War Crimes Act.

The act specifies two separate definitions of “cruel and inhuman treatment,” one that applies to abuses that took place before the act became effective and another that applies to abuses that occur after the effective date. After the effective date of the act, cruel and inhuman treatment is deemed to exist if the abuse causes serious and non-fleeting mental pain or suffering. However, abuses committed before the act became effective are deemed criminal only if the pain or suffering was “prolonged.”

The act replaces the blanket criminalization of actions that were Common Article 3 violations with a list of “grave breaches” of Common Article 3 that are listed and defined in the act. Under the Military Commissions Act, although torture and cruel and inhuman treatment are specified as “grave breaches,” degrading or humiliating treatment is not.

The same New York Times editorial noted: “Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The” [Military Commissions Act] “would effectively eliminate the idea of rape as torture.”

Criminal Trial Procedures

The Military Commissions Act severely handicaps a person who is given the right to appear before a military commission for the purpose of defending against a charge that he or she deserves to be punished as an unlawful enemy combatant. That defendant can only use a civilian defense attorney if that attorney has been determined to be eligible for access to classified information that is classified at the level secret or higher. [10 U.S.C. sec. 949c(b)(3)(D)]. A finding of guilty by a particular commission requires that only two-thirds of the members of the commission present at the time the vote is taken agree [10 U.S.C. sec. 949m(a)] instead of the normal U.S. jury requirement of a unanimous verdict. U.S. courts would have limited powers to review any aspect of this new system. No appeal can be based on the Geneva Conventions, directly or indirectly. No trial of an accused is required at all, let alone within a specified time. Coerced evidence would be admissible. Section 949a of the act allows hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts martial to be admitted in a trial by a military commission.

In short, the Military Commissions Act makes a trial much less than what we have determined through the years is necessary to be fair. We give mass murderers due process rights to assure no innocent person goes to jail. The old saying that it is better that 10 guilty persons go free than that one innocent person be punished obviously has no application to the Act. As recent DNA testing has shown, even with procedural safeguards, innocent persons occasionally are convicted. The Military Commissions Act undoubtedly will greatly increase the potential for mistaken convictions of those who fall within its reach.

How Did This Happen?

On June 29, the U. S. Supreme Court, in the case of Hamdan v. Rumsfeld, declared the Bush administration’s purported system of trying detainees at Guantanamo Bay illegal because it violated both the Uniform Code of Military Justice and the Geneva Conventions. Thus a new system had to be established to replace the Bush system to prevent the eventual release of the Guantanamo detainees. The Military Commissions Act was the result.

Why a majority of Congress voted for it is quite another issue. Some pundits argue those who voted in favor of the act were afraid to vote against it for fear of being labeled “pro-terrorist” in the November elections. Sixty-five senators and 250 representatives voted in favor of jeopardizing a fundamental tenet of our society: justice for all. As with many laws passed to deal with issues of popular concern, Congress should have taken more time and thought about what it was doing. Now, what it did must be undone.

A Lack of Perspective

We have become so fearful of late. That schools are outlawing the game of tag for fear of injuries and lawsuits is but one example of how, in our desire to limit risk, we are willing to unreasonably limit freedom. Of course, there were times in our nation’s past when freedoms were similarly limited or civil rights abused.

In World War II, most U.S. citizens of Japanese ancestry were imprisoned without trial or justification. During the Civil War, habeas corpus was suspended. A primitive fear caused a less educated, less enlightened society to trample upon the constitutional rights of many persons during those and other dark times. But these episodes of unconstitutional legislation are not praised or considered warranted today. Instead, they are considered as a part of the “shameful” portion of U.S. history.

A similar judgment of history awaits the Military Commissions Act after the unreasoning fear that grips us dissipates — unless we no longer have the freedom to express or record that unfavorable judgment.

It is curious that many professed Christians want to presume guilt and to imprison without a trial any person who follows the Islamic religion or who is of Arabic descent. Matthew quotes Jesus as saying evil done to the least of his brethren was the same thing as evil done to Jesus (25: 40-46). It is an axiom of the law that when we begin to tolerate injustice because it is expedient to do so, the rule of law dies.

In the 1961 classic movie, “Judgment at Nuremberg,” Spencer Tracy, playing the part of a U.S. jurist, delivers the judgment of the post-war court convened to try, among others, an eminent German jurist who looked the other way as the Third Reich violated the fundamental rights of German citizens.

His words are profound and, sadly, prescient of today’s crisis and the Military Commissions Act. To wit: “This trial has shown that under a national crisis, ordinary — and even able and extraordinary — men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. ... How easily it can happen. There are those in our own country, too, who today speak of the ‘protection of country’ — of ‘survival.’ A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems as if the only way to survive is to use the means of the enemy, to rest survival on what is expedient — to look the other way. Well, the answer to that is ‘survival as what?’ A country isn’t a rock — it’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult! Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth and the value of a single human being.”

What Should We Do?

If you agree with me, communicate to all who will hear you the danger this misbegotten law poses. Do not vote for anyone who will not seek its repeal. Do not look the other way.