"This law does not apply to American citizens," the Times editorial stated, "but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening." [NYT, Oct. 19, 2006]
"Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission," according to the law, passed by the Republican-controlled Congress in September and signed by Bush on Oct. 17.
Another provision of the law states that "any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy [presumably U.S. military allies, such as Great Britain and Israel], shall be punished as a military commission ... may direct." [Emphases added]
If the Times is correct that "this law does not apply to American citizens," why does it contain language referring to "any person" and then adding in an adjacent context a reference to people acting "in breach of an allegiance or duty to the United States"?
Though the new law specifically strips non-U.S. citizens of habeas corpus the right to a fair trial American citizens caught up in Bush's legal system also would be denied the right to challenge their incarceration.
Besides allowing for "any person" to go into Bush's system, the law prohibits detainees once inside the system from appealing to the traditional American courts until a defendant is fully prosecuted and sentenced, which could translate into an indefinite imprisonment since there are no timetables for Bush's tribunal process to play out.
The law states that once a person is detained, "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever ... relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions."
That court-stripping provision barring "any claim or cause of action whatsoever" would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can't file a motion with a court, he can't assert any constitutional rights, including habeas corpus.
Other constitutional protections in the Bill of Rights such as a speedy trial, the right to reasonable bail and the ban on "cruel and unusual punishment" would seem to be beyond an American detainee's reach as well.
By putting detainees, apparently including American citizens outside the U.S. constitutional process, Bush's system makes a mockery of the Sixth Amendment in particular. It reads: