Blog of Rights

MCA, Still Crazy After All These Years

By Chris Anders, Senior Legislative Counsel, ACLU Washington Legislative Office at 5:23pm

Two years ago today, President Bush signed into law the Military Commissions Act of 2006 (MCA), stripping away the time-honored right of habeas corpus, and thus allowing the federal government to detain anyone it so chooses indefinitely - no charges pressed, no lawyer provided, no contact with family granted.

That day, thousands of ACLU members converged in Washington, D.C. for our biannual Membership Conference. We took out this ad in the Washington Post to bolster our efforts lobbying Congress, calling the MCA "one of the most radical rollbacks of civil liberties in American history." The Supreme Court has since backed us up on this, ruling the stripping of habeas corpus to be unconstitutional.

After years of back and forth between the Executive, Judicial and Legislative branches of government to determine the constitutionality of the MCA and military tribunals, the Supreme Court ruled this past June that those being held by the government do have habeas rights. This was a huge setback to the Bush administration's argument for indefinite detention - however that was the only aspect of the MCA the Court addressed. Congress must now pick up the slack.

The MCA also:

  • codified military tribunals - a flawed substitute for a trial that allows hearsay and coerced evidence;
  • granted the president the authority to interpret U.S. obligations to the Geneva Conventions; and
  • retroactively redefined what constitutes a war crime.

It's impossible to know how many people are still being held indefinitely by the U.S. government. We do know that after all of this time only a single trial has been completed under the military tribunal process, yet the government still claims that the flawed tribunals are an adequate and effective way to process the 255 detainees still being held at Guantánamo Bay.

The MCA was a tragic degradation of our Constitution and the rights it guarantees - one that will never be forgotten. But President Bush did not act alone. Both chambers of Congress gave their blessing to this travesty, and this fact squarely places the onus on our elected officials in the House and Senate to undo this stain on America's history. The ACLU calls on Congress and the next administration to repeal the MCA and fully restore access to the judicial system for those still being held, as well as reaffirm U.S. obligations abroad concerning the Geneva Conventions and war crimes. While they're at it, they should also close Guantánamo Bay and end indefinite detention without charge.

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