The bill gives the president the authority to establish military commissions that would be convened by the defense secretary to conduct military trials of individuals held indefinitely by the U.S. government as “alien unlawful enemy combatants.”

The passage of the act follows a June Supreme Court ruling that military trials against such prisoners are lawful provided the president has legislative authorization to carry them out.

Under the new law, U.S. officials have said they plan to conduct military trials of 14 people who were being held in secret prisons by the CIA, the Los Angeles Times reported. According to press reports there are also plans under way to bring about 100 of the 455 prisoners being held at the U.S. Naval base at Guantánamo Bay, Cuba, before military tribunals as well. Many have been jailed there for more than four years without charges. The government has reportedly already brought charges against 10 of them.

The new measure makes it legal to detain indefinitely the Guantánamo prisoners against whom no charges are brought while denying them the right to appeal their imprisonment. The Justice Department is expected to request dismissal of petitions challenging the confinement of hundreds of prisoners in Guantánamo.

The House approved the bill by a vote of 250-170, the Senate by 65-34. Forty-four Congressional Democrats voted for the legislation, which President George Bush is expected to approve.

The law empowers the U.S. government to imprison indefinitely without charges or to try in military courts individuals captured in combat and those accused of giving “material support” to anyone Washington brands a terrorist. It denies them the right to file a writ of habeas corpus to challenge their detention and to a speedy trial as guaranteed in the U.S. Constitution.

In addition, the law permits the use of “evidence” obtained through coercion and hearsay in such trials. Verdicts in the military trials will be delivered by members of the armed forces presided over by a military lawyer, not by a jury. Citizens of the United States and other countries may be considered “enemy combatants.” The law also gives immunity to jailers involved in secret interrogations who at the time “reasonably believed” their actions were legal.

In June the Supreme Court gave its stamp of approval to the Bush administration to conduct military trials of prisoners at Guantánamo through its decision in the case of Hamdan v. Rumsfeld. While ruling that the military commissions as structured by the administration at the time lacked legislative authorization, the court said the trials could proceed as long as the president either sought authorization from Congress or ensured that the trials conformed to the Uniform Code of Military Justice and applicable sections of the Geneva Conventions.

The new law allows the U.S. government to determine what constitutes torture of “enemy combatants.” It authorizes the president “to promulgate… administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” These conventions define “grave breaches” as “willful killing, torture or inhuman treatment,” and “willfully causing great suffering or serious injury to body or health.”

“It is unreasonable to suggest that any legislation could provide an explicit and all-inclusive list of what specific activities are illegal and which are permitted,” said Republican senator John McCain, of Arizona. “It was never our purpose to prevent the CIA from detaining and interrogating terrorists. On the contrary, it is important to the war on terror that the CIA have the ability to do so.”

Australian attorney general Philip Ruddock, in Washington to discuss with U.S. officials the military trials, including against an Australian citizen, commented, “Some decisions will have to be taken as to what constitutes torture for the military commission process and those who are adjudicating the matter will determine that.” He added, “I don’t regard sleep deprivation as torture.”

A September 30 news analysis in the Los Angeles Times noted that the bill “gave Bush most of what he wanted in substance.”

Democratic politicians who opposed the bill have offered tactical criticism of how best to prosecute the “war on terror.” Speaking October 2, retired general Wesley Clark, who led the 1999 war on Yugoslavia and bid for the 2004 Democratic presidential nomination, took issue with the bill, which he said would shine a light on Washington’s methods in the “war on terror.” The trials, he said, will raise questions about “what coercive tactics were used? How reliable was the information? It’s going to bring everything back to the surface.”
 
 
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