Between the radioactive elucubrations of the Dear Leader, the accumulation of tortured and executed bodies in Iraq, the tawdry revelations of the Foley affair, and the growing murmur of a supposed Democratic sweep in the midterm election (I’ll believe that one when I see it), there has been precious little front-page consideration of the signing, earlier this week, of the Military Commissions Act.

As you may have heard, the act drastically changes the legal landscape for foreigners in the United States, whether here legally or illegally. It allows the government to deny a foreign suspect the right to challenge his or her imprisonment (habeas corpus), to employ evidence obtained by a wide and ambiguous range of coercive methods, and to use classified evidence whilst withholding it from the defense. Small things like that.

I will leave it to the lawyers here to amplify or amend this summary. Perhaps one reason why there hasn’t been much discussion is that the Supreme Court will ultimately determine whether, and in what form, this law stands. It’s quite possible that the Hamdan case, in which desi lawyer Neal Katyal plays a prominent role, will become the test case. At any rate, some in the media are looking ahead to this next phase, and already centering speculation on Justice Anthony Kennedy, the current swing Supreme.

I did, however, come across one very interesting piece of commentary that I wanted to share. In an Op-Ed in the Boston Globe, Harvard Law professor Martha Minow and a former legal adviser to the Israeli military, Gabrielle Blum, compare the new legislation with Israel’s approach to the same problem. They lead with their finding:

BEFORE ENACTING the “Detainee Bill” (otherwise known as the Military Commissions Act) two weeks ago, Congress should have spent more time learning from the Israeli experience. Compared with Israel’s security measures during a long and difficult experience with terrorism, the US Congress has gone too far in its willingness to compromise human rights and civil liberties. Security considerations, as legitimate and forceful as they are, do not justify such excessive measures, as the Israeli practice demonstrates.

Israel’s Unlawful Combatants Act, enacted in 2002, among other things provides for an immediate military hearing of the detainee upon detention, and a judicial hearing within two weeks and again every six months; a range of requirements for detention conditions and privileges; and the detainee’s right to meet with the Red Cross. The current U.S. legislation provides none of these safeguards. In addition, also unlike Israel, the U.S. law grants immunity to U.S. officials from prosecution except in the most extreme cases.

Minow and Blum conclude:

… the US Military Commissions Act sends to other countries facing terrorism the message that effective judicial review is null and void once the security alarm is sounded. It demonstrates a level of panic and irresponsible abandonment of principles that other nations, facing similar dangers, have avoided.

As bad as this may be for America, it is potentially far worse for countries that look to the United States for leadership. Now, the US example will encourage other nations to throw away rights just when they are sorely tested.

Continue reading →