- The Washington Times - Sunday, December 10, 2006

With the Democrats about to control Congress, for at least two years, congressional oversight of the executive branch — greatly diminished for the past six years — will be restored. Already in some Democrats’ plans are amendments to the recently passed and signed into law, the Military Commissions Act of 2006 (MCA), which greatly enlarges the president’s much-prized unitary executive powers.

Connecticut’s Democratic Sen. Christopher Dodd has authored the Effective Terrorists Prosecution Act — which he will reintroduce in the new Congress — that amends the rampant constitutional defects in the Military Commissions Act that the president was very pleased to sign in October. Since global homicidal terrorism is far from abating, Mr. Dodd makes the obligatory point:

“It’s clear that the people who perpetrated these horrendous crimes against our people have no moral compass and deserve to be prosecuted to the full extent of the law (but) at the same time protecting what it means to be America… if we are to uphold the values of equal justice that are codified in our Constitution.”

Accordingly, his legislation would restore to detainees suspected of terrorism their rights to habeas corpus — the core of American due process — stripped out of the 2006 Military Commissions Act, even though the Supreme Court in 2004 and 2006 ruled that these prisoners are entitled to meaningfully petition our federal courts, including their conditions of confinement.

The Dodd bill would also amend the startlingly expanded definition of “unlawful enemy combatant” in the MCA law that allows the president to hold detainees, so designated by him, indefinitely — including those loosely accused of “purposely and materially supporting” the enemy. (Permanent legal aliens in the United States could also be swept up as enemy combatants for contributing to charities they didn’t know were linked to terrorists.)

The Dodd bill would narrow this definition of enemy combatants “to individuals who directly participate in hostilities against the United States.”

Under the 2006 MCA, trials of enemy combatants can include evidence obtained from “coercive” interrogations, a term proved in the past to sometimes be a euphemism for torture. The Dodd bill excludes such evidence as well as unreliable hearsay evidence — from sources the defendants are not able to confront.

The bill the president signed into law last October also gives him, and his successors, the authority to interpret the meaning and application of the Geneva Conventions on the treatment of prisoners. This country is a signatory to those conventions, and the Supreme Court — in Hamdi v. Rumsfeld (2006) — mandated that we adhere to the Geneva Conventions.

Rather than allowing the president the power to decide the spirit and letter of the Geneva Conventions, Mr. Dodd’s amendments would clearly subject that interpretation by the president to congressional and judicial oversight.

And, the Effective Terrorists Prosecution Act, if passed by the new Congress, would call for “expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionality of its provisions.”

A good many members of Congress who voted for that act, very much including those who did so reluctantly, did expect the Supreme Court to have the final word on its constitutionality. “Let the Supreme Court clean it up,” said Republican Sen. Arlen Specter, who voted for that legislation even after publicly and passionately declaring unconstitutional the stripping of meaningful habeas-corpus rights from the detainees.

The high court, of course, will decide for itself how expeditiously it will review MCA 2006, but its members will bear in mind that the law signed by the president essentially overrules two previous Supreme Court decisions.

In speaking against MCA 2006, Mr. Dodd struck a powerful personal note: “My father, Thomas Dodd, worked alongside Justice Robert Jackson in prosecuting [the war crimes] trials at Nuremberg. He viewed Nuremberg as one of the most pivotal moments in our history — where America chose to uphold the rule of law rather than succumb to the rule of the mob.”

Then Mr. Dodd made a pivotal constitutional point that eluded the president and Congressional supporters of MCA 2006:

“These [Nazi] enemies of the United States [on trial at Nuremberg] were not given the opportunity to walk away from their crimes. Rather, they were given the right to face their accuser, the right to confront evidence against them and the right to a fair trial.”

Those rights that define our rule of law have been emasculated in MCA 2006 — dishonoring who we are as Americans.

“Underlying [America’s role at Nuremberg],” Mr. Dodd continued, “was the conviction that this nation must not tailor its most fundamental principles to the conflict of the moment — and the recognition that, if we did, we would be walking in the very footsteps of the enemy we despised.”

I hope other warriors for the Constitution will sign on to Dodd’s Effective Terrorists Prosecution Act to show we can be safe without forgetting who we are.

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