MCA, Still Crazy After All These Years

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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The loss of the Great Writ is the reason I joined the ACLU. Thank goodness you folks are still on the attack.


I'm glad you pointed out the most important part about this- that Bush did not act alone. Nothing he has done over the past two years would have been possible without the sheepish help of the Democratic party. But, no worries because I'm sure Obama will save the world. All we have to do is vote and then hope for the next four years. Right?

Brian Estabrook

The MCA is truly a travesty of epic proportions.

Unfortunately, there are several systemic causes that have contributed to the creation of the "soil" in which this and other weeds have grown.

1) American Exceptionalism - It is one thing to say that the "American Idea" is exceptional and it is quite another to say that the American people are exceptional. We have moved from the former to the latter. There was a day when our government and citizenry valued the rights of foreign nationals and considered our rights bound up with theirs, but that day has long since passed us by. Our core principles have been consumed by unblinkingly short-sighted self-interest.

2) The political climate has become binary instead of nuanced. Nuance in our political discourse was officially pronounced dead the moment when President Bush said "Either you are with us or against us." This sort of absolutist, binary ideology eventually becomes policy. Presumably, the next logical inference from President Bush's statement would be this: If you're against us, why should we afford you the rights of those who are for us? When political discourse moves from complexity to simple dichotomization, everyone's liberty is in danger.

3) The marriage of faith with the function of the state has turned the current administration into an equal and opposite version of the fundamentalism they are battling. Blind faith allows its adherents to hold mutually contradicting beliefs without sensing the inherent tension. This is how President Bush can purport to be fighting for democracy while using tactics that fundamentally undermine nearly every democratic principle.

4) The vast expansion of executive powers following 9/11 has moved Congress closer and closer to playing Rome's Senate against President Bush's Caesar. In other words, it is a massive stretch to believe that there are effective checks and balances in place between the executive and legislative branches. This, combined with neoconservative opposition to "activist judges" (presumably the same ones who decided brown v. board), has created the perfect storm of executive expansionism. Without checks and balances, the administration does not need to worry about accountability and thus has the added sense of creating "right" and "wrong" rather than complying with right and wrong. In other words, sacrificing democracy for some Orwellian reality.

5) There has been a thorough debasement of intellectual rigor and reason in this country. Academics and intellectuals are now derided as "elitists" who are unable to relate to the everyday man and woman. It used to be that conservatives created an alternate system of intellectual rigor that offered legitimate criticism and other points of view, but this has been eschewed in favor of tearing down intellectualism itself. What is valued now are decisions that come from the gut rather than ones based on academically-understood data, rigor and thoroughly vetted alternatives.

Certainly, there are more issues than just these. But these are some of the major themes that have created space for the degradation of democratic principles in this country.

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