Military Commissions Act Modest Proposal

While I would dearly like to see it happen, I don't think that the Military Commissions Act passed by Congress shortly before the election will be repealed now that Democrats control Congress.  The President would veto that effort, and the Republicans in Congress would vote to sustain that veto.  If we know anything about the President, it is that he loves torture and hates admitting that he was wrong.

What is more viable in the short term?  I think we should have Democrats pass legislation that while not directly and forcefully contradicting the Military Commissions Act, at least, cements legal rights outside of its scope that the administration didn't have the votes to eliminate this year.  This could win bipartisan support and would discourage further encroachments of our liberties.

(1) Specifically states that no United State citizen or legal alien detained in the United States in a place where the courts are functioning may be detained as an enemy combatant or be held other than pursuant to the ordinary criminal justice system.  This should also vest a determination of whether the courts are functioning or not somewhere in the judicial branch.

(2) Imposes limits on the conditions of confinement for people held as material witnesses (conditions would have to be better than those of persons awaiting trial) and limits the grounds for invoking the material witness statute.

(3) Denies the President the power to remove anyone subject to the jurisdiction of the U.S. criminal justice system to military or other executive branch custody.

(4) Establishes that any person, regardless of U.S. citizenship status, who is detained in a U.S. state or territory by anyone, or is in the jurisdiction of the U.S. criminal justice system, retains the right to sue for a violation of their civil rights.

(5) Establishes a right for anyone detained by U.S. authority outside the 50 U.S. states and U.S. territories who is held awaiting a decision of a combatant status review panel for whom a decision has not been made within 6 months, to bring a habeas corpus action in the District Court for the District of Columbia.  This closes the biggest loophole creating indefinite detention possibilities in the Military Commissions Act which assumes, but does not require, that such hearings be held promptly.

(6) Prohibits rendition by any instrumentality or agent of the U.S. government of anyone, regardless of citizenship status, from the U.S. or any other county, to any other county (except the United States), outside the scope of an extradition treaty or a deportation of a deportable alien to his home country, subject to refugee status claims.  Establishes a private civil right of action against the United States itself (rather than merely those involved) for violations, and established criminal penalties for those who violate this law.

(7) Requires the U.S. to provide an aggregate account of everyone detained by any instrumentality or agent of the U.S. government (including U.S. military prisons abroad in places like Iraq) for 30 days or more, including that person's name and a summary of the ground for the detention and place of detention, for any reason, within 30 days of their initial detention, to Congress.

(8) Requires any U.S. citizen other than an active duty member of the U.S. military, in U.S. custody, detained abroad as an enemy combatant or prisoner of war, to be transferred to custody the United States and either turned over to criminal courts for prosecution, or allowed to seek review of their status in a habeas corpus proceeding in a civilian court.

This would overturn a handful of Court precedents that have impacted a total of less than half a dozen Americans in the post-Civil War era, but would prevent most worst case scenarios.

In separate defense appropriations legislation, the Congress ought to, provide a handsome sum to Jose Padilla to compensate him for being illegally detained as an enemy combatant, and should defund new military prison construction in Guantanamo Bay.

This still leaves serious problems created by the Military Commissions Act that will lead to abuses to be solved after President Bush is gone.  But, it would also prevent further abuses.