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A mere six years ago, if the average American lawyer were to hear of a judicial system in which defendants could be held indefinitely without recourse to habeas corpus to challenge the basis of their captivity; subject to interrogations involving painful, humiliating and otherwise coercive techniques; and tried on the basis of testimony they could not hear, much less challenge, the lawyer would no doubt conjure up an image of the Stalin show trials, the kangaroo courts of a despot or other Kafkaesque perversions of justice. He or she would never imagine such an unfair system arising here. Well, it just did. On Oct. 17, President Bush signed into law the Military Commissions Act of 2006, which addresses trials “for violations of the law of war.” Among its most controversial provisions is one that states: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Another provision authorizes the president to interpret “the meaning and application of the Geneva Conventions,” which could allow him great latitude regarding coercive interrogations. Others allow for the use of hearsay evidence, evidence seized without a warrant and statements of the accused resulting from “alleged coercion.” We do not do justice when we suspend basic principles of fairness, especially the writ of habeas corpus, enshrined in our Constitution. We don’t have to subvert longstanding American principles and values in order to prosecute terrorists effectively. While the act’s proponents claim that terrorists deserve no better, our judicial system is premised on equal justice for all accused, no matter how odious their alleged crimes. We can only hope that the 110th Congress has the sense to repeal this deeply flawed act, or that the Supreme Court strikes down its most egregious provisions.

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