Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two witnesses to the same overt Act, or on Confession in Open Court. —U.S. Constitution, Article III, Section 3 .
There is not only a battle against terrorism, but there is a battle here to protect this country's rule of law. —Military lawyer Charles Swift, forced to retire by the Pentagon after defeating Bush in the Supreme Court in Hamdan v. Rumsfeld, a decision now overturned by Congress in the Military Commissions Act of 2006.
George W. Bush likes to call himself "the Decider," and on signing the Military Commissions Act of 2006—presented him by the Republican-controlled Congress—he has far more power to reinterpret the rule of law, including the definition of treason and the Constitution, than any president in American history.
For one of many examples, there was this exchange the day before the signing between a reporter and presidential press secretary Tony Snow:
Reporter: "[This law] makes him [Bush] the final arbiter on torture."
Presidential spokesman Snow: "Right."
Bush will not only decide what torture is under the "coercive interrogations" allowed under the new law—including by the CIA in its prisons—but will also decide what evidence is permitted before the military commissions at Guantánamo.
Bush also can have "unlawful enemy combatants"—whom he designates as such—picked up anywhere, including on the streets of the United States, and held indefinitely. This applies to aliens, including millions of lawful immigrants in the United States.
As he already has—with Yaser Hamdi and Jose Padilla—Bush can also lock up American citizens as "enemy combatants" for "purposely and materially supporting" the enemy. As citizens, they will be entitled to access to our courts (under procedures alien to the Bill of Rights). But all noncitizen "enemy combatants" will be forbidden to have lawyers file habeas corpus petitions in our courts on whether they're being held lawfully.
Bush is the first president since Abraham Lincoln to suspend the "Great Writ," habeas corpus. (In 1866, the Supreme Court ruled Lincoln had no constitutional right to do that; but this is now the John Roberts Court with Antonin Scalia, Clarence Thomas, Samuel Alito, and a problematic Anthony Kennedy—plus any further nominee Bush will be able to place there during the rest of his term.)
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