In 2006 President George W. Bush implemented the Military Commissions Act, in an attempt to protect our country and all Americans living in it from Terrorism. After September 11th 2001, the people woke up to the reality of global terrorism and our government followed suit. In this article, I will examine the affects of the Military Commissions Act of 2006 on our Constitutional rights. I will compare it to Germany and how they deal with the threat of terrorism. Has the Military Commissions Act given too much power to the President? Has it taken too much power from American citizens? Will it lead us down the wrong path? Will Americans continue to allow their liberties to be stripped from them one by one until there are no liberties left?
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Late September in the year 2006 both the House and the Senate passed the Military Commissions Act. In the House H.R. 6166 passed with 253 votes in favor. In the Senate S. 3930 passed with 65 votes in favor. Many controversies have arisen as a result of the MCA of 2006 being written into Law. These range from Habeas Corpus rights, treatment of detainees, presidential powers and the liberties of American Citizens. Does the MCA of 2006 truly undermine the American Constitution and if so, to what extent? What price are the citizens of America willing to pay to continue the war on terror? How have other countries dealt with the threat of terror? Can America do better; can we truly set the example of Liberty while suspending the United States Constitution?
According to the Military Commissions Act of 2006 (Public Law 1009-366), the law is not there to “alter” the President powers (sec.2) under the Constitution of the United States of America and the laws of America. It declares that military commissions can be established constitutionally “for areas declared to be under martial law.” (sec.2). It goes on the give the purpose for the MCA to establish procedure in regards to persecuting “alien unlawful enemy combatants” that are currently or previously have been engaged in hostilities against the U.S. and for violations of the law of war. Because of the status “Unlawful Enemy Combatant” rules of the Geneva Conventions do not apply, rules of speedy trial do not apply, protection against self-incrimination does not apply, and any pretrial investigation does not apply.
The danger of this is that any evidence that leads the President to believe that a person is in fact an Unlawful Enemy Combatant is not available for the accused to see and anyone else for that matter (outside of the military commission) because the Intel is always deemed “classified.” The definition of Unlawful Enemy Combatant is as follows, “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, 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.” Many feel this is far too broad of a definition and allows for many right’s to be with held. Without Habeas Corpus how is anyone to know if the accused are rightly or falsely imprisoned “indefinitely.”
The concern here is for the law and how President Bush was able to circumvent our criminal justice system and Uniform Military Justice by way of military order. “President Bush created military commissions to put on trial Al-Queda and other terrorist suspects for violations of the law of war…The commissions maybe held in secret at any time and the defense may be refused access to any evidence-including material that may go toward establishing innocence. (pp. 34-35, Peace & Change, Vol.33. No.1) The implications of this absolute power of the President to imprison suspected terrorists are shocking and frightening. This leads me back to how were the detainees treated a Guantanamo. The Center for Constitutional Rights conducted an investigation concerning the treatment of the detainees and on July 10, 2006 put out a report on what happened. This report sites many violations of human rights and shows proof of torture conducted by interrogators. The list is ugly and included many things we Americans find deplorable when conducted by other countries.
In light of all of the articles and opinions I have read concerning the Military Commissions Act of 2006 I decided I would look into what other countries have done to ward off terrorism and how they may deal with the liberties of their people. As an American that believes in the Constitution of the United States and fears that perhaps this type of Presidential Power will lead the country I love into Totalitarianism. Who better to look to but the Germany, a country that dearly remembers what that is and truly wants to avoid any law that comes even close to that? The German Federal Constitutional Court has gone to great lengths to protect its people from terrorism and to protect them from removal of their liberties. Their policy is an about face from the Military Commissions Act of 2006.
It is easy to see that it is a huge task for a government to protect the people from terrorism while maintaining civil liberties. One would think it almost impossible to do that and some even believe that it is. If we can’t detain suspects indefinitely, or we allow Habeas Corpus and some loop hole in the law allows a guilty person to go free, if we can’t interrogate them with some measure of force, how will we know who else is out there ready to do us harm. How could we stop a terrorist attack from happening again? Could our constitution be our demise in regards to terrorism? I believe that we could learn a lot from the German Court. I believe we can fight the threat of terrorism while maintaining our liberties.
In many rulings handed down from the German Court since 2004, the liberties of the German people have been protected while proving to be effective in the war on terror. In Article 1 of Germany’s Basic Law, the court ruled that technical surveillance used to observe homes and places of work. “The court found that the inviolability of human dignity guarantees a core of privacy in one’s home that cannot be infringed by the state and must be respected even in investigations of the most hideous crimes” They used Article 1 , which bars constitutional amendments that restrict the absolute guarantee of human dignity. (Poscher, R. Terrorism and the Constitution. P.14) This requires that police must stop or interrupt surveillance if it is infringing on privacy. This includes discussing inner feelings, family life, and sex, but does not include actual criminal activity. Criminal activity includes third parties and does not fall under that same protection of privacy.
In 2005 the German court heard a case involving a Judge and surveillance he had been subject to as a result of a police code that allowed surveillance of people “who are likely to commit serious crimes and or people that are in contact with them” (Poscher. P. 14) The German Court found this code unconstitutional. The basis of their decision was the fallibility of “likely to commit serious crimes” and requires that the Court be shown “concrete proof” of criminal activities; not the likely hood of future criminal activities. This set the president all over Germany and all of the states redrafted the code concerning this matter.
German law and internet surveillance came under scrutiny in 2006 when North Bhine-Westphalia wanted to make law allowing internet surveillance. It was struck down by the German Court in 2008, citing that this was a violation of privacy, basically demonstrating that the internet is “one’s personal information system.” “Concrete Danger” must be present in order for internet surveillance to continue, although online searches are monitored.
Another major point the Germans have made with their policies on police and the war on terror is the openness with its Parliament about any relevant activities. This is very unlike the Secretive Military Commissions Act, which, as shown above, allows the commissions to be held in secret at any time under the order of the President and does not have to be shared with Congress. “German examples show that, given doctrinal effort and creativity, constitutional law does not have to take a back seat when confronted with the dynamics of terrorism and the fight against it.” (Poscher, R.P.18). The German Courts use of “concrete danger” has allowed for efficient interception of terrorist attacks stopping over seven attacks since 2002 all the while maintaining civil liberties.
America is still a young country and our government has much to learn, but our Constitutional Ideals are the backbone of our Democracy and the quality of life for her citizens. Although we have not been perfect over the years at maintaining the liberties the Constitution guarantees, its essence is viable and should be upheld to the fullest extent. We set the protocol for Democracy and Independence and I believe we should set the best example we possibly can. If we arrest anyone for crimes of terror we must show the burden of Proof, we must exercise our Constitutional rights by granting them to the accused. Our liberties are not “dependent on public opinion, political rallies, alliances or majorities.” (Poscher, R.P. 17).
It is common knowledge that political figures are influenced by many parties and that influence should not be the excuse that is used to remove our constitutional rights. In and of itself, those influences are forms of terrorism used against us. When we fight terrorism aren’t we trying to protect our lives, our liberties, and our pursuit of happiness? Therefore how can we idly sit by why they are being removed from us under the War on Terror?
Although the U.S. Supreme Court recently ruled in favor of Habeas Corpus rights regarding the detainees at Guantanamo, we still need to be aware and vigilant and see to it that the Military Commissions Act of 2006 and the Patriot Act do not impede on our constitutional rights. Many lessons can be learned from the German Court, I am hopeful that we may take a look and see how we can make it safer, truly safer, not the false sense of security that many Americans have all the while they are being video taped at every intersection regardless of anything CONCRETE. America is not based on fear; we were born from the desire to be FREE.
O’Connor,K. & Sabato,L.(2008). American Government: Continuity and Change. New York: Pearson Education, Inc.
Poscher, R. (2009).Terrorism and the Constitution. Retrieved March 2, 2009 from http://proquest.umi..com/
Culter,L. (2008). Human Rights Guarantees, Constitutional Law, and the Military Commissions Act of 2006. Peace and Change, Vol. 33, No. 1, January 2008.
Public law 109-366 (2006). Military Commissions Act of 2006. Retrieved March 14, 2009 from http://www.usgovinfo.gov