In 1798, Thomas Jefferson wrote that "Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." For 200 years, with rare and shameful exceptions, the writ of habeas corpus, written into the text of the U.S. Constitution even before the Bill of Rights was added, has protected the fundamental right of any person held in custody by the U.S. government to challenge the unlawfulness of their incarceration.

      Last week, the Senate passed the Military Commissions Act of 2006 on a vote of 65-34. The House had adopted a nearly identical bill. The president undoubtedly will sign the law, and civil liberties organizations undoubtedly will challenge it in court. In the meantime, great injustice will prevail that may never be cured.

      According to Bruce Ackerman, professor of law and political science at Yale University, the law "further entrenches presidential power" and allows the administration to declare even an American citizen an "unlawful combatant" subject to indefinite detention. In a cruel irony, the new law affords less legal protection to the 355 low-level detainees held at Guantánamo Bay, many of whom are believed to be innocent, than the 14 high-level suspects recently transferred there from secret CIA facilities around the world.

      "The detainee who isn't charged with anything, he sits forever," Army Maj. Tom Fleener, a military defense lawyer, told The New York Times. "It is an absurd twist."

      Largely based on proposals written by the White House and Justice Department, the Military Commission Act is breathtaking in its denial of fundamental rights under the Constitution and international law. The law re-establishes virtually intact President Bush's military tribunals, which were rejected by the Supreme Court as unconstitutional in Hamdam v Rumsfeld only three months ago.

      It legalizes U.S. war crimes committed before Dec. 30, 2005. It also prevents people harmed by the U.S. in violation of the Geneva Conventions from filing a claim in a U.S. court and strips legal residents of their right to challenge their detention in court if they are accused of being enemy combatants. It retroactively abolishes the right of Guantánamo detainees to challenge their detention, approves the CIA program that in the past allowed waterboarding and other forms of torture and designates any individuals as unlawful enemy combatants if they provide material support to those engaged in hostilities against the U.S., a concept previously found unconstitutionally vague by the U.S. District Court for the Central District, in Los Angeles. Even worse, the law expands the definition "unlawful enemy combatant" to include anyone determined as such by a tribunal under the authority of the president or the defense secretary. The law denies anyone determined to be an enemy combatant - or anyone "awaiting such determination" - the right to challenge his or her detention, treatment or conditions of confinement in court.

      The law not only lacks explicit prohibitions against the sadistic U.S. government abuses since 9/11 but also authorizes the president to define Geneva Conventions violations as he sees fit. There is no clear bar to the Bush administration once again authorizing illegal acts such as waterboarding, death threats, induced hypothermia, use of dogs and stress positions.

      Congress has bestowed on the president the unilateral authority to determine interrogation tactics. Moreover, by revamping the War Crimes Act and retroactively applying new provisions, the new law replaces a provision criminalizing "grave breaches" of Common Article 3 of the Geneva Conventions with a list of violations that is less inclusive and less certain than current law. Administration officials, instead of Congress, will be the ones specifying which acts fall within each of these new terms. The problem is compounded by the White House's refusal to explain which practices are barred. In fact, National Security Adviser Steven Hadley refuses to state whether even waterboarding would be prohibited.

      Over the past several years, documents obtained by the American Civil Liberties Union and information disclosed by the International Committee of the Red Cross show that federal employees have engaged in appalling acts such as soaking a prisoner's hand in alcohol and setting it on fire, administering electric shocks, subjecting prisoners to repeated sexual abuse and assault, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner's ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, breaking a prisoner's shoulders and using abusive methods that contributed to several deaths.

      Last year, as part of the McCain anti-torture amendment to the Defense Department authorization bill, Congress required the Defense Department to comply with the Army Field Manual on Interrogations. After a lengthy review, the Army Field Manual was revised. As a result of this review and the requirements of the McCain amendment, the Defense Department brought itself into compliance with Common Article 3 of the Geneva Conventions. But Congress has now created one set of rules for people in uniform and a lower set of rules for civilian contractors and CIA agents.

      The new law strips the courts of their constitutional role as a check on the executive branch, including their authority to ensure that the protections of the Constitution and the Geneva Conventions are enforced. Even a detainee who is tortured will not be allowed to seek relief from any U.S. court. Denying access to the courts signals to the world that we fear our own independent judiciary.

      The law has little to do with the military commission that will try high-level suspects like the 14 recently transferred to Guantánamo. In fact, the law's primary impact will be on the hundreds of detainees who are being held indefinitely and have never been charged with any war crime and many of whom may well be innocent of having ever taken up arms against the United States. Although the law does allow limited appeals for those who go before a military commission or a Combatant Status Review Tribunal, there is no guarantee that any person detained by our government will be provided either a trial or a tribunal. Even when the government holds a tribunal proceeding, the decision can be based on coerced and hearsay evidence. Moreover, based on the reports from tribunal proceedings in Guantánamo, most, if not all, of the detainees are being held based almost entirely on evidence they may never have seen.

      The new law grants immunity, backdated to nine years ago, to government officials who authorized or ordered illegal acts of torture and abuse by revamping the War Crimes Act to replace the prohibition on all breaches of Common Article 3 of the Geneva Conventions with a narrower list of prohibited acts. These provisions help fulfill the goal of White House Counsel Alberto Gonzales to avoid War Crimes Act prosecutions of government officials by advising the president to attempt to suspend Common Article 3 of the Geneva Conventions for many detainees.

      The new law also explicitly authorizes the use of evidence obtained in violation of the provisions of the McCain anti-torture amendment, so long as it was obtained before its enactment nine months ago. As a result, evidence that was beaten out of a witness - and evidence obtained in torture cells in Syria, Jordan and Egypt - could be the basis for a conviction of a detainee in an American proceeding.

     

      Congress has never before authorized federal prosecutors to use evidence obtained by torture or abuse in any criminal trial. The new law allows convictions based on statements made by people who may have been willing to invent anything to stop the pain.

      During several congressional hearings, the nation's top judge advocates general for the four uniformed services, deeply concerned that what the U.S. does to its detainees other countries may do to our soldiers, all agreed that coerced evidence has no place in any American courtroom and no place in any American military commission. Congress ignored them.

      Although the new law restates the McCain anti-torture amendment, as enacted last year, unlike the Senate Armed Services Committee-reported bill on military commissions that made violations of the McCain amendment a war crime, the new law restates the McCain amendment as a prohibition separate from the War Crimes Act. As a result of this change, there is a risk that, if a court reviews these matters, it may infer that Congress did not intend violations of the McCain amendment to violate the War Crimes Act.

      Supreme Court Justice Robert Jackson took leave from the court to serve as chief prosecutor at the Nuremberg war crimes trials. When his work was done 60 years ago this week, confident that the rule of law had prevailed, he wrote, "Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial, which they, in the days of their pomp and power, never gave to any man. But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength." If the Military Commissions Act is not overturned in court, the future will ask what could the detainees have said in their favor. The world will compare what this government has done to infamous Star Chamber and show trials of totalitarian regimes.

      By ignoring the lessons of the past and sacrificing fundamental fairness for an illusion of strength, our government has seriously weakened America, put our own soldiers at greater risk, enhanced the image of the United States around the world as a tyrannical evildoer and cast lasting shame on the promise of our Constitution.

Stephen Rohde is a constitutional lawyer and partner in the Los Angeles firm of Rohde & Victoroff. He is a past president of the Beverly Hills Bar Association and the American Civil Liberties Union of Southern California.