The Military Commissions Act or How the Rule of Law is About to Stand at Attention

The Military Commissions Act of 2006,(S 3930 pdf | LC Thomas Resources ) started as a rejoinder to the Hamdan ruling because the absence of Congressional authorization for military tribunals was a central flaw in the Executive's approach. While solving that problem, the Supreme Court should be troubled by the Act because, once again, the Bush Administration has overreached in a number of very important ways.

According to Eugene R. Fidell, a Washington attorney and military law expert who is president of the National Institute of Military Justice, the habeas-stripping provision is unconstitutional. Stripping foreign suspects of the right to challenge their detentions in US courts is a perversion of the principle of the Rule of Law. Just as perverse are the new provisions for using hearsay and coerced evidence. Finally, the Act defines conspiracy as a war crime, although four Supreme Court members in the majority in June said it was not a war crime. At least, the Act does not just allow the president to determine the meaning and application of the Geneva Conventions. See Detainee Bill Shifts Power to President New York Times, Sept. 30, 2006.

For the Republican strategy uses to achieve this legislation, see U.S. Senate Republican Policy Committee Crafting Legislation to Prosecute Terrorist War Criminals and Preserve Valuable Interrogations.

Bottom line: CW views Justice Anthony Kennedy as the swing vote when the Act comes before the Supreme Court

File under: "It's the Constitution, stupid." [JH]