An alarmingly large majority of American senators and Congresspersons voted in favour of the Military Commissions Act last week, sending the international community a chilling message about America’s position on torture. If this is the first you’ve heard of the bill, here’s hoping it won’t be the last.
Drastically underplayed in the media both in the U.S. and abroad, the bill is the Republican attempt to solve a major legal problem publicly thrown in the Bush administration’s face by the U.S. Supreme Court this past June. The court ruled that the Geneva Conventions do indeed apply to the people held as (suspected) terrorists in American military prisons-in particular, the court determined that the trials for detainees (or “military commissions”) resembled kangaroo courts and could not continue.
Last week the Republicans revealed their solution to these court-imposed limits: a law stating that the president, and not the courts, would get to decide the interpretation of the Geneva Conventions. Don’t like the way you were interrogated? Think it might violate international law? Sorry-the president doesn’t agree.
Coming from an administration that has already tried to defend questionable interrogation techniques by producing absurdly narrow definitions of torture, this development is hardly reassuring.
The move is also a slap in the face to the U.S. Constitution, which envisioned three independent branches of government (executive, judicial, legislative) that are supposed to keep each other in check. Thrusting the interpretation of international law into the hands of the executive, the same branch that is giving the orders to violate the Convention, is not in line with this constitutional vision. Neither is the outright removal of a detainee’s right to challenge the grounds of his or her detainment, by means of a writ of habeas corpus.
A writ of habeas corpus is designed to allow the courts (the judicial branch) to force the release of a person held illegally by, you guessed it, the executive branch. The new bill confirms that anyone deemed by the executive to be an “alien unlawful enemy combatant” (“alien” means that U.S. citizens can breathe easy for the time being) can be held indefinitely with little legal recourse-except, of course, the dubious military commissions themselves.
Of course, the constitutionality of the new bill is expected to be challenged, since it amounts to little more than a reversion to the situation before the Supreme Court’s June decision, with a note thrown in from lawmakers saying that whatever the president says he wants to do is just fine. But the mere thought that democratically elected representatives might think that this bill is a good idea ought to be enough to send chills down the spine of even the most casual observer of American politics, as should the thought that they just might get away with it.
Meanwhile, Canada has had the means to detain non-citizens indefinitely with little legal recourse since 1991, though public concern over the fairness of these “security certificates” (government orders to deport persons deemed dangerous without laying charges or even revealing evidence) only reached the media in connection with detentions made after September 11, 2001.
Earlier this year, our Supreme Court heard an appeal from three men detained by security certificate-Mohamed Harkat, recently released from detention but now living under house arrest and facing deportation to Algeria; Adil Charkaoui, also under house arrest; and Hassan Almrei, a Syrian refugee who is still being held at the Millhaven Penitentiary in Bath-challenging the constitutionality of the certificates.
Like the new American legislation (and the old American policies), Canadian security certificates are draconian practices better left in the era of Louis XIV. Whither Canada? That, too, must wait for the courts.
