Military Commissions Act of 2006
Encyclopedia
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President
George W. Bush
on October 17, 2006. Drafted in the wake of the Supreme Court
's decision on Hamdan v. Rumsfeld
, the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."
The term "competent tribunal
" is not defined in the Act itself.
It is defined in the US Army Field Manual, section 27–10, for the purpose of determining whether a person is or is not entitled to prisoner of war
status, and consists of a board of not less than three officers. It is also a term used in Article five of the third Geneva Convention
. However, the rights guaranteed by the third Geneva Convention to lawful combatants are expressly denied to unlawful military combatants for the purposes of this Act by Section 948b (see above).
The Act also defines an alien as "a person who is not a citizen of the United States", and a co-belligerent to mean "any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy."
If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.
‘‘(b) NOTICE TO ACCUSED—Upon the swearing of the charges
and specifications in accordance with subsection (a), the accused
shall be informed of the charges against him as soon as practicable.
The Act also contains provisions (often referred to as the "habeas provisions") removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is 'awaiting determination' regarding enemy combatant status. This allows the United States government to detain such aliens indefinitely without prosecuting them in any manner.
These provisions are as follows:
(1) 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. Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 ( note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
amended some of the provisions of the 2006 Act to improve protections for defendants. The American Civil Liberties Union
summarized the positive aspects as being "restricting coerced and hearsay evidence and providing greater defense counsel resources," though overall it argued that the law as amended still fell "short of providing the due process required by the Constitution."
The text of the law states that its "purpose" is to "establish procedures governing the use of military commissions to try alien
unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." While the most controversial provisions in the law refer to "alien unlawful enemy combatants", section 948a refers to "unlawful enemy combatants" (not explicitly excluding US citizens).
Cato Institute
legal scholar Robert A. Levy
writes that the Act denies habeas rights
only to aliens, and that US citizens detained as "unlawful combatants" would still have habeas rights with which to challenge their indefinite detention. While formally opposed to the Act, Human Rights Watch
has also concluded that the new law limits the scope of trials by military commissions to non-US citizens including all legal aliens. CBS
legal commentator Andrew Cohen, commenting on this question, writes that the "suspension of the writ of habeas corpus
—the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad" and that "it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted."
On the other hand, congressman David Wu
(D–OR) stated in the debate over the bill on the floor of the House of Representatives
that "by so restricting habeas corpus, this bill does not just apply to enemy aliens. It applies to all Americans because, while the provision on page 93 has the word "alien in it, the provision on page 61 does not have the word alien in it." For more on this interpretation, see criticism.
The bill passed in the House, 250–170–12, on September 29, 2006.
Bush signed the bill into law on October 17, 2006.
which would have added a sunset provision after five years, an amendment by Ted Kennedy
which would have outlawed specific interrogation techniques including waterboarding
(SA.5088), and an amendment by Arlen Specter
(R
–PA) and Patrick Leahy
(D
–VT) preserving habeas corpus. Specter's amendment was rejected by a vote of 51–48. Specter voted for the bill despite the defeat of his amendment. The bill was finally passed by the House on September 29, 2006 and presented to the President for signing on October 10, 2006.
does not apply to alien enemy combatants engaged in hostilities against the United States, and that the provisions of the Act removing habeas corpus
do not apply to United States citizens; they conclude that therefore the law does not conflict with the Constitution.
National Review
columnist Andrew McCarthy argued that since the law applies to "aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it" they do not have a constitutional right to habeas corpus. McCarthy also wrote that the Detainee Treatment Act of 2005, while not allowing a standard habeas corpus review, provides that each detainee "has a right to appeal to our civilian-justice system. — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court."
John Yoo
, a former Bush Administration Justice Department
official and current professor of law at the University of California, Berkeley
, called the Act a “stinging rebuke” of the Supreme Court's Hamdan v. Rumsfeld
ruling, calling that ruling “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy.” Yoo cited Johnson v. Eisentrager
, in which the court decided that it would not hear habeas claims brought by alien enemy prisoners held outside the US and refused to interpret the Geneva Conventions to give rights in civilian court against the government.
Formerly Lieutenant Colonel
in the US Army Judge Advocate General's Corps
and current professor at St. Mary's University School of Law
, Jeffrey Addicott wrote “the new Military Commissions Act reflects a clear and much-needed Congressional commitment to the war on terror, which to this point has been largely conducted in legal terms by the executive branch with occasional interjections from the judiciary”.
George W. Bush
, President of the United States
:
John McCain
, United States Senator:
ruled in Boumediene v. Bush
that the MCA constituted an unconstitutional encroachment of habeas corpus
rights, and established jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act. As such, the provisions of MCA suspending Habeas Corpus are no longer in effect.
A number of legal scholars and Congressional members—including Senator Arlen Specter
, who was a Republican
and the Ranking Member
of the Senate Judiciary Committee—previously criticized the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion".
In the House debate, Representative David Wu
of Oregon
offered this scenario:
Following debate in the house and senate, the final law revoked Habeas Corpus protections only for non-citizens:(1) 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.
Hence in the preceding example, if Wu's wife, a citizen, were picked up outside a military base, Wu could himself walk across the street and file a habeas corpus petition with the courts. Furthermore, now that the Supreme Court ruled the restrictions on habeas corpus provisions invalid, even non-citizens can request the courts review the legality of their arrest and imprisonment.
, and Joanne Mariner, from FindLaw
, this bill redefines unlawful enemy combatant in such a broad way that it refers to any person who is
From Section 950q. Principals:
This makes it possible for US citizens to be designated unlawful enemy combatant because
Jennifer Van Bergen, a journalist with a law degree, responds to the comment that habeas corpus has never been afforded to foreign combatants with the suggestion that, using the current sweeping definition of war on terror
and unlawful combatant
, it is impossible to know where the battlefield is and who combatants are. Also, she notes that most of the detentions are already unlawful.
The Act also suggests that unlawful enemy combatant refers to any person
Some commentators have interpreted this to mean that if the President says you are an enemy combatant, then you effectively are.
One Bush administration critic described the Act as "the legalization of the José Padilla
treatment"—referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged. A legal brief filed on Padilla's behalf alleges that during his imprisonment Padilla was subjected to sensory deprivation
, sleep deprivation
, and enforced stress positions. He continues to be held by the United States and now has access to US courts.
stated that "In violation of this fundamental tenet of the rule of law, defendants could be convicted for actions that were not illegal when they were taken." Joanne Mariner, an attorney who serves as the Terrorism and Counterterrorism Program Director at Human Rights Watch
, described the issue this way:
Law professor John P. Cerone, the co-chair of the American Society of International Law
Human Rights Interest Group, adds that the Act "risks running afoul of the principle against ex post facto criminalization, as recognized in international law (article 15 of the International Covenant on Civil and Political Rights
) as well as US constitutional law."
First, the MCA changed the definition of war crimes for which US government defendants can be prosecuted. Under the War Crimes Act of 1996
, any violation of Common Article 3 of the Geneva Conventions
was considered a war crime and could be criminally prosecuted. Section 6 of the Military Commissions Act amended the War Crimes Act so that only actions specifically defined as "grave breaches" of Common Article 3 could be the basis for a prosecution, and it made that definition retroactive to November 26, 1997. The specific actions defined in section 6 of the Military Commissions Act include torture
, cruel or inhumane treatment, murder
, mutilation
or maiming, intentionally causing serious bodily harm, rape
, sexual assault
or abuse, and the taking of hostages
. According to Mariner of Human Rights Watch, the effect is "that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law." The Center for Constitutional Rights
adds:
In 2005, a provision of the Detainee Treatment Act
(section 1004(a)) had created a new defense
as well as a provision to providing counsel
for agents involved in the detention and interrogation of individuals “believed to be engaged in or associated with international terrorist activity”. The 2006 MCA amended section 1004(a) of the Detainee Treatment Act to guarantee free counsel in the event of civil or criminal prosecution and applied the above mentioned legal defense to prosecutions for conduct that occurred during the period September 11, 2001 to December 30, 2005. Although the provision recognizes the possibility of civil and or criminal proceedings, the Center for Constitutional Rights
has criticised this claiming that "The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive."
said that the Act "contravenes human rights principles." and an editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts
," while American Civil Liberties Union
Executive Director Anthony D. Romero said, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."
Jonathan Turley
, professor of constitutional law at George Washington University
, called the Military Commissions Act of 2006 "a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison
said that he created a system essentially to be run by devils, where they could not do harm, because we didn't rely on their good motivations. Now we must."
Nat Hentoff opined in the Village Voice that
make US government officials culpable for war crimes.
should be tried in a military tribunal as an enemy combatant rather than in a civilian court. The document begins with:
and the two others were dismissed on jurisdiction
al grounds.
The first person prosecuted under the MCA was David Matthew Hicks, an Australian. The outcome of his trial was prescribed by a pre-trial agreement negotiated between Hicks's defense counsel and the convening authority
, Susan J. Crawford
on March 26, 2007. The agreement stipulated an effective sentence of nine months in exchange for his guilty plea and compliance with other conditions. On March 31, 2007, the tribunal handed down a seven year sentence, of which all but nine months was suspended, with the remainder to be served in Australia.
On June 4, 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr
, a Canadian who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel
Peter Brownback
ruled that the military tribunals, created to deal with "unlawful enemy combatants," had no jurisdiction over detainees who had been designated only as "enemy combatants." He dismissed without prejudice all charges against Khadr. Also on June 4, Captain Keith J. Allred
reached the same conclusion in the case of Salim Ahmed Hamdan
.
The United States Department of Defense
responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures." That position was called "dead wrong" by Specter.
challenged the MCA's declination of habeas corpus to "alien unlawful enemy combatants" in the United States District Court for the District of Columbia
. Judge James Robertson
, who ruled in favor of Hamdan in the Hamdan v. Rumsfeld case, refused to rule in favor of Hamdan in this case regarding habeas corpus, writing:
In April 2007, the Supreme Court declined to hear two cases challenging the MCA: Boumediene v. Bush
and Al Odah v. United States
On June 29, 2007, the court reversed that decision, releasing an order that expressed their intent to hear the challenge. The two cases have been consolidated into one. Oral arguments were heard on December 5, 2007. The decision, extending habeas corpus rights to alien unlawful enemy combatants but allowing the commissions to continue to prosecute war crimes, was handed down on June 12, 2008.
Even though detainees now have the right to challenge the government's basis of their detention, that does not guarantee release as evidenced by the Dec 14th, 2009 ruling of U.S. District Judge Thomas F. Hogan who upheld continued detention of Musa'ab Al-Madhwani in Guantanamo Bay, Cuba even though the court determined that he was not a continuing threat, the government met its burden of proving he was a member of al-Qaeda.
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on October 17, 2006. Drafted in the wake of the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
's decision on Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."
Scope of the Act
- Sec. 948b. Military commissions generally
- (a) Purpose— This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
-
- (b) Authority for Military Commissions Under This Chapter— The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.
-
- (c) Construction of Provisions— The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general court-martial under chapter 47 of this title (the Uniform Code of Military JusticeUniform Code of Military JusticeThe Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.
- (c) Construction of Provisions— The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general court-martial under chapter 47 of this title (the Uniform Code of Military Justice
-
- (d) Inapplicability of Certain Provisions—
-
-
- (1) The following provisions of this title shall not apply to trial by military commission under this chapter:
-
-
-
-
- (A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.
-
-
-
-
-
- (B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.
-
-
-
-
-
- (C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.
-
-
-
-
- (2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.
-
-
- (e) Treatment of Rulings and Precedents— The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter.
-
- (f) Status of Commissions Under Common Article 3— A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
.
- (f) Status of Commissions Under Common Article 3— A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions
-
- (g) Geneva Conventions Not Establishing Source of Rights— No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
- Sec. 948c. Persons subject to military commissions
- Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
- Sec. 948d. Jurisdiction of military commissions
- (a) Jurisdiction— A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
-
- (b) Lawful Enemy Combatants— Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
-
- (c) Determination of Unlawful Enemy Combatant Status Dispositive— A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review TribunalCombatant Status Review TribunalThe Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
- (c) Determination of Unlawful Enemy Combatant Status Dispositive— A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal
-
- (d) Punishments— A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war.
The term "competent tribunal
Competent tribunal
Competent Tribunal is a term used Article 5 paragraph 2 of the Third Geneva Convention, which states:-ICRC commentary on competent tribunals:...
" is not defined in the Act itself.
It is defined in the US Army Field Manual, section 27–10, for the purpose of determining whether a person is or is not entitled to prisoner of war
Prisoner of war
A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...
status, and consists of a board of not less than three officers. It is also a term used in Article five of the third Geneva Convention
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
. However, the rights guaranteed by the third Geneva Convention to lawful combatants are expressly denied to unlawful military combatants for the purposes of this Act by Section 948b (see above).
Unlawful and lawful enemy combatant
"Any alien unlawful enemy combatant is subject to trial by military commission under chapter 47A — Military Commissions (of the Military Commissions Act of 2006 (10 U.S.C. 948a (Section 1, Subchapter I))). The definition of unlawful and lawful enemy combatant is given in Chapter 47A—Military commission: Subchapter I--General provisions: Sec. 948a. DefinitionsThe Act also defines an alien as "a person who is not a citizen of the United States", and a co-belligerent to mean "any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy."
Provisions
The Act changes pre-existing law to forbid explicitly the invocation of the Geneva Conventions when executing the writ of habeas corpus or in other civil actions [Act sec. 5(a)]. This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases.If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.
‘‘(b) NOTICE TO ACCUSED—Upon the swearing of the charges
and specifications in accordance with subsection (a), the accused
shall be informed of the charges against him as soon as practicable.
- A civilian defense attorney may not be used unless the attorney has been determined to be eligible for access to classified information that is classified at the level Secret or higher. []
- A finding of Guilty by a particular commission requires only a two-thirds majority of the members of the commission present at the time the vote is taken []
- In General— No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories. []
- As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. []
- No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense. [].
The Act also contains provisions (often referred to as the "habeas provisions") removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is 'awaiting determination' regarding enemy combatant status. This allows the United States government to detain such aliens indefinitely without prosecuting them in any manner.
These provisions are as follows:
(1) 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. Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 ( note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Amendment in 2009
The Military Commissions Act of 2009Military Commissions Act of 2009
The United States House of Representatives passed a bill, known as the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006.Formally, it is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 ....
amended some of the provisions of the 2006 Act to improve protections for defendants. The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
summarized the positive aspects as being "restricting coerced and hearsay evidence and providing greater defense counsel resources," though overall it argued that the law as amended still fell "short of providing the due process required by the Constitution."
Applicability
There is a controversy over whether this law affects the rights of habeas corpus for United States citizens.The text of the law states that its "purpose" is to "establish procedures governing the use of military commissions to try alien
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." While the most controversial provisions in the law refer to "alien unlawful enemy combatants", section 948a refers to "unlawful enemy combatants" (not explicitly excluding US citizens).
Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
legal scholar Robert A. Levy
Robert A. Levy
Robert A. Levy is the chairman of the libertarian Cato Institute and the organizer and financier behind District of Columbia v. Heller, the Supreme Court Case that established the Second Amendment as affirming an individual right to gun ownership. He is a Cato senior fellow and an author and pundit...
writes that the Act denies habeas rights
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
only to aliens, and that US citizens detained as "unlawful combatants" would still have habeas rights with which to challenge their indefinite detention. While formally opposed to the Act, Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
has also concluded that the new law limits the scope of trials by military commissions to non-US citizens including all legal aliens. CBS
CBS
CBS Broadcasting Inc. is a major US commercial broadcasting television network, which started as a radio network. The name is derived from the initials of the network's former name, Columbia Broadcasting System. The network is sometimes referred to as the "Eye Network" in reference to the shape of...
legal commentator Andrew Cohen, commenting on this question, writes that the "suspension of the writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
—the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad" and that "it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted."
On the other hand, congressman David Wu
David Wu
David Wu is an American politician who served as the U.S. representative for from 1999 to 2011. He is a member of the Democratic Party.The district includes most of Portland west of the Willamette River, as well as all of Yamhill, Columbia, Clatsop, and Washington Counties...
(D–OR) stated in the debate over the bill on the floor of the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
that "by so restricting habeas corpus, this bill does not just apply to enemy aliens. It applies to all Americans because, while the provision on page 93 has the word "alien in it, the provision on page 61 does not have the word alien in it." For more on this interpretation, see criticism.
Legislative history
The bill passed the Senate, 65–34, on September 28, 2006.The bill passed in the House, 250–170–12, on September 29, 2006.
Bush signed the bill into law on October 17, 2006.
Legislative actions in the Senate
Several amendments were proposed before final passage of the bill by the Senate; all were defeated. Among them were an amendment by Robert ByrdRobert Byrd
Robert Carlyle Byrd was a United States Senator from West Virginia. A member of the Democratic Party, Byrd served as a U.S. Representative from 1953 until 1959 and as a U.S. Senator from 1959 to 2010...
which would have added a sunset provision after five years, an amendment by Ted Kennedy
Ted Kennedy
Edward Moore "Ted" Kennedy was a United States Senator from Massachusetts and a member of the Democratic Party. Serving almost 47 years, he was the second most senior member of the Senate when he died and is the fourth-longest-serving senator in United States history...
which would have outlawed specific interrogation techniques including waterboarding
Waterboarding
Waterboarding is a form of torture in which water is poured over the face of an immobilized captive, thus causing the individual to experience the sensation of drowning...
(SA.5088), and an amendment by Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
(R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
–PA) and Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
(D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
–VT) preserving habeas corpus. Specter's amendment was rejected by a vote of 51–48. Specter voted for the bill despite the defeat of his amendment. The bill was finally passed by the House on September 29, 2006 and presented to the President for signing on October 10, 2006.
Final passage in the Senate
| Party | AYE | NAY | ABS |
| Republicans | 53 | 1 | 1 |
| Democrats | 12 | 32 | 0 |
| Independent | 0 | 1 | 0 |
| Total | 65 | 34 | 1 |
Final passage in the House
| Party | AYE | NAY | ABS |
| Republicans | 218 | 7 | 5 |
| Democrats | 32 | 162 | 7 |
| Independent | 0 | 1 | 0 |
| Total | 250 | 170 | 12 |
- AYE = Votes for the act
- NAY = Votes against the act
- ABS = Abstentions
Support
Supporters of the act say that the Constitutional provision guaranteeing habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
does not apply to alien enemy combatants engaged in hostilities against the United States, and that the provisions of the Act removing habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
do not apply to United States citizens; they conclude that therefore the law does not conflict with the Constitution.
National Review
National Review
National Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
columnist Andrew McCarthy argued that since the law applies to "aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it" they do not have a constitutional right to habeas corpus. McCarthy also wrote that the Detainee Treatment Act of 2005, while not allowing a standard habeas corpus review, provides that each detainee "has a right to appeal to our civilian-justice system. — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court."
John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
, a former Bush Administration Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
official and current professor of law at the University of California, Berkeley
University of California, Berkeley
The University of California, Berkeley , is a teaching and research university established in 1868 and located in Berkeley, California, USA...
, called the Act a “stinging rebuke” of the Supreme Court's Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
ruling, calling that ruling “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy.” Yoo cited Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...
, in which the court decided that it would not hear habeas claims brought by alien enemy prisoners held outside the US and refused to interpret the Geneva Conventions to give rights in civilian court against the government.
Formerly Lieutenant Colonel
Lieutenant colonel
Lieutenant colonel is a rank of commissioned officer in the armies and most marine forces and some air forces of the world, typically ranking above a major and below a colonel. The rank of lieutenant colonel is often shortened to simply "colonel" in conversation and in unofficial correspondence...
in the US Army Judge Advocate General's Corps
Judge Advocate General's Corps, U.S. Army
The Judge Advocate General's Corps of the United States Army is composed of Army officers who are also lawyers and who provide legal services to the Army at all levels of command. The Judge Advocate General's Legal Service includes judge advocates, warrant officers, paralegal noncommissioned...
and current professor at St. Mary's University School of Law
St. Mary's University School of Law
St. Mary's University School of Law is one of the professional graduate schools of St. Mary's University. The law school is located in San Antonio, Texas, and is the oldest Catholic law school in the American Southwest. The University is a private Catholic university...
, Jeffrey Addicott wrote “the new Military Commissions Act reflects a clear and much-needed Congressional commitment to the war on terror, which to this point has been largely conducted in legal terms by the executive branch with occasional interjections from the judiciary”.
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
, President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
:
- Today, the Senate sent a strong signal to the terrorists that we will continue using every element of national power to pursue our enemies and to prevent attacks on America. The Military Commissions Act of 2006 will allow the continuation of a CIA program that has been one of America's most potent tools in fighting the War on TerrorWar on TerrorThe War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
. Under this program, suspected terrorists have been detained and questioned about threats against our country. Information we have learned from the program has helped save lives at home and abroad. By authorizing the creation of military commissions, the Act will also allow us to prosecute suspected terrorists for war crimes.
John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
, United States Senator:
- Simply put, this legislation ensures that we respect our obligations under Geneva, recognizes the President's constitutional authority to interpret treaties, and brings accountability and transparency to the process of interpretation by ensuring that the executive's interpretation is made public. I would note that there has been opposition to this legislation from some quarters, including the New York Times editorial page. Without getting into a point-by-point rebuttal here on the floor, I would simply say that I have been reading the Congressional Record trying to find the bill that page so vociferously denounced. The hyperbolic attack is aimed not at any bill this body is today debating, nor even at the Administration's original position. I can only presume that some would prefer that Congress simply ignore the Hamdan decision, and pass no legislation at all. That, I suggest to my colleagues, would be a travesty.
MCA as an unconstitutional suspension of habeas corpus
The Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled in Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
that the MCA constituted an unconstitutional encroachment of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
rights, and established jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act. As such, the provisions of MCA suspending Habeas Corpus are no longer in effect.
A number of legal scholars and Congressional members—including Senator Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
, who was a Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
and the Ranking Member
Ranking member
In United States politics, a ranking member is the second-most senior member of a congressional or state legislative committee from the majority party. Another usage refers to the most senior member of a congressional or state legislative committee from the minority party. This second usage, often...
of the Senate Judiciary Committee—previously criticized the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion".
In the House debate, Representative David Wu
David Wu
David Wu is an American politician who served as the U.S. representative for from 1999 to 2011. He is a member of the Democratic Party.The district includes most of Portland west of the Willamette River, as well as all of Yamhill, Columbia, Clatsop, and Washington Counties...
of Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
offered this scenario:
- Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, “I am a U.S. citizen”. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald RumsfeldDonald RumsfeldDonald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
, but she cannot take it across the street to an article 3 court.
Following debate in the house and senate, the final law revoked Habeas Corpus protections only for non-citizens:(1) 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.
Hence in the preceding example, if Wu's wife, a citizen, were picked up outside a military base, Wu could himself walk across the street and file a habeas corpus petition with the courts. Furthermore, now that the Supreme Court ruled the restrictions on habeas corpus provisions invalid, even non-citizens can request the courts review the legality of their arrest and imprisonment.
Broad definition of enemy combatant
According to Bill Goodman, past Legal Director of the Center for Constitutional RightsCenter for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
, and Joanne Mariner, from FindLaw
FindLaw
FindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
, this bill redefines unlawful enemy combatant in such a broad way that it refers to any person who is
- engaged in hostilities or who has purposefully and materially supported hostilities against the United States.
From Section 950q. Principals:
- Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.
This makes it possible for US citizens to be designated unlawful enemy combatant because
- it could be read to include anyone who has donated money to a charity for orphans in AfghanistanAfghanistanAfghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C.Washington, D.C.Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
Jennifer Van Bergen, a journalist with a law degree, responds to the comment that habeas corpus has never been afforded to foreign combatants with the suggestion that, using the current sweeping definition of war on terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
and unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
, it is impossible to know where the battlefield is and who combatants are. Also, she notes that most of the detentions are already unlawful.
The Act also suggests that unlawful enemy combatant refers to any person
- who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
Some commentators have interpreted this to mean that if the President says you are an enemy combatant, then you effectively are.
- Patrick LeahyPatrick LeahyPatrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
, United States Senator:
- Passing laws that remove the few checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin LadenOsama bin LadenOsama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
and al Qaeda. Authorizing indefinite detention of anybody the Government designates, without any proceeding and without any recourse—is what our worst critics claim the United States would do, not what American values, traditions and our rule of law would have us do. This is not just a bad bill, this is a dangerous bill.
One Bush administration critic described the Act as "the legalization of the José Padilla
José Padilla (alleged terrorist)
José Padilla , also known as Abdullah al-Muhajir or Muhajir Abdullah, is a United States citizen convicted of aiding terrorists....
treatment"—referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged. A legal brief filed on Padilla's behalf alleges that during his imprisonment Padilla was subjected to sensory deprivation
Sensory deprivation
Sensory deprivation or perceptual isolation is the deliberate reduction or removal of stimuli from one or more of the senses. Simple devices such as blindfolds or hoods and earmuffs can cut off sight and hearing respectively, while more complex devices can also cut off the sense of smell, touch,...
, sleep deprivation
Sleep deprivation
Sleep deprivation is the condition of not having enough sleep; it can be either chronic or acute. A chronic sleep-restricted state can cause fatigue, daytime sleepiness, clumsiness and weight loss or weight gain. It adversely affects the brain and cognitive function. Few studies have compared the...
, and enforced stress positions. He continues to be held by the United States and now has access to US courts.
Claims the MCA is an unconstitutional ex post facto law
Another criticism is that the Act violates the Constitution's prohibition against ex post facto laws. Pro human rights group Human Rights FirstHuman Rights First
Human Rights First is a nonprofit, nonpartisan human rights organization based in New York City and Washington, D.C....
stated that "In violation of this fundamental tenet of the rule of law, defendants could be convicted for actions that were not illegal when they were taken." Joanne Mariner, an attorney who serves as the Terrorism and Counterterrorism Program Director at Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
, described the issue this way:
- The MCA states that it does not create any new crimes, but simply codifies offenses "that have traditionally been triable by military commissions." This provision is meant to convince the courts that there are no ex post facto problems with the offenses that the bill lists. In Hamdan v. Rumsfeld, however, a plurality of the Supreme Court (four justices) found that conspiracy—one of the offenses enumerated in the MCA—was not a crime triable by military commission. The bill's statement that conspiracy is a traditional war crime, does not, by legislative fiat, make it so.
Law professor John P. Cerone, the co-chair of the American Society of International Law
American Society of International Law
The American Society of International Law is a nonprofit, nonpartisan, educational membership organization, based in Washington, D.C.. It was founded in 1906, and was chartered by the United States Congress in 1950...
Human Rights Interest Group, adds that the Act "risks running afoul of the principle against ex post facto criminalization, as recognized in international law (article 15 of the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
) as well as US constitutional law."
Protections from criminal and civil prosecutions for previous instances of alleged torture
Two provisions of the MCA have been criticized for allegedly making it harder to prosecute and convict officers and employees of the US government for misconduct in office.First, the MCA changed the definition of war crimes for which US government defendants can be prosecuted. Under the War Crimes Act of 1996
War Crimes Act of 1996
The War Crimes Act of 1996 was passed with overwhelming majorities by the United States Congress and signed into law by President Bill Clinton....
, any violation of Common Article 3 of the Geneva Conventions
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
was considered a war crime and could be criminally prosecuted. Section 6 of the Military Commissions Act amended the War Crimes Act so that only actions specifically defined as "grave breaches" of Common Article 3 could be the basis for a prosecution, and it made that definition retroactive to November 26, 1997. The specific actions defined in section 6 of the Military Commissions Act include torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, cruel or inhumane treatment, murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, mutilation
Mutilation
Mutilation or maiming is an act of physical injury that degrades the appearance or function of any living body, usually without causing death.- Usage :...
or maiming, intentionally causing serious bodily harm, rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
or abuse, and the taking of hostages
Hostage
A hostage is a person or entity which is held by a captor. The original definition meant that this was handed over by one of two belligerent parties to the other or seized as security for the carrying out of an agreement, or as a preventive measure against certain acts of war...
. According to Mariner of Human Rights Watch, the effect is "that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law." The Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
adds:
- The MCA's restricted definitions arguably would exempt certain U.S. officials who have implemented or had command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
for coercive interrogation techniques from war crimes prosecutions.
. . . .
This amendment is designed to protect U.S. government perpetrators of abuses during the "war on terror" from prosecution.
In 2005, a provision of the Detainee Treatment Act
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
(section 1004(a)) had created a new defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
as well as a provision to providing counsel
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
for agents involved in the detention and interrogation of individuals “believed to be engaged in or associated with international terrorist activity”. The 2006 MCA amended section 1004(a) of the Detainee Treatment Act to guarantee free counsel in the event of civil or criminal prosecution and applied the above mentioned legal defense to prosecutions for conduct that occurred during the period September 11, 2001 to December 30, 2005. Although the provision recognizes the possibility of civil and or criminal proceedings, the Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
has criticised this claiming that "The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive."
Other claims the MCA is a violation of human rights
Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
said that the Act "contravenes human rights principles." and an editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
," while American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
Executive Director Anthony D. Romero said, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."
Jonathan Turley
Jonathan Turley
Jonathan Turley is an American lawyer, legal scholar, writer, commentator, and legal analyst in broadcast and print journalism...
, professor of constitutional law at George Washington University
George Washington University
The George Washington University is a private, coeducational comprehensive university located in Washington, D.C. in the United States...
, called the Military Commissions Act of 2006 "a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
said that he created a system essentially to be run by devils, where they could not do harm, because we didn't rely on their good motivations. Now we must."
Nat Hentoff opined in the Village Voice that
- conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. BushRasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
and Hamdan v. RumsfeldHamdan v. RumsfeldHamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
make US government officials culpable for war crimes.
Application
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.First use
On November 13, 2006, the Department of Justice asserted in a motion with the U.S. Court of Appeals for the Fourth Circuit that, according to the Act, Ali Saleh Kahlah al-MarriAli Saleh Kahlah al-Marri
Ali Saleh Kahlah al-Marri is a citizen of Qatar who was arrested on charges of being a sleeper al Qaeda agent while studying at Bradley University in the United States. After denying any wrongdoing since his arrest, al-Marri pled guilty in a plea agreement to the federal charges on April 30, 2009...
should be tried in a military tribunal as an enemy combatant rather than in a civilian court. The document begins with:
- Pursuant to Federal Rule of Appellate Procedure and Local Rule 27(f), respondent-appellee Commander S.L. Wright respectfully moves this Court to remand this case to the district court with instructions to dismiss it for lack of subject matter jurisdiction. Respondent-appellee has conferred with counsel for petitioner-appellant, and they agree with the briefing schedule proposed below. As explained below, the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al- Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court's jurisdiction (as well as the district court's) over al-Marri's habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.
Initial prosecutions
Of the first three war crimes cases brought against Guantanamo Bay detainees under the MCA, one resulted in a plea bargainPlea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
and the two others were dismissed on jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
al grounds.
The first person prosecuted under the MCA was David Matthew Hicks, an Australian. The outcome of his trial was prescribed by a pre-trial agreement negotiated between Hicks's defense counsel and the convening authority
Convening Authority
The term convening authority is used in United States military law to refer to an individual whose job includes appointing officers to play a role in a court-martial, or similar military tribunal or military commission...
, Susan J. Crawford
Susan J. Crawford
Susan J. Crawford is an US lawyer, who was appointed the Convening Authority for the Guantanamo military commissions, on February 7, 2007.Secretary of Defense Robert Gates appointed Crawford to replace John D...
on March 26, 2007. The agreement stipulated an effective sentence of nine months in exchange for his guilty plea and compliance with other conditions. On March 31, 2007, the tribunal handed down a seven year sentence, of which all but nine months was suspended, with the remainder to be served in Australia.
On June 4, 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr
Omar Khadr
Omar Ahmed Khadr is a Canadian child soldier and one of the juveniles held at the Guantanamo Bay detention camp. He was convicted of five charges under the United States Military Commissions Act of 2009 including murder in violation of the law of war and providing material support for terrorism,...
, a Canadian who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel
Colonel
Colonel , abbreviated Col or COL, is a military rank of a senior commissioned officer. It or a corresponding rank exists in most armies and in many air forces; the naval equivalent rank is generally "Captain". It is also used in some police forces and other paramilitary rank structures...
Peter Brownback
Peter Brownback
Peter E. Brownback III is a retired military officer and lawyer.He was appointed to be a Presiding Officer on the Guantanamo military commissions, by retired general John D. Altenburg....
ruled that the military tribunals, created to deal with "unlawful enemy combatants," had no jurisdiction over detainees who had been designated only as "enemy combatants." He dismissed without prejudice all charges against Khadr. Also on June 4, Captain Keith J. Allred
Keith J. Allred
-Early Life and Career:Allred entered the Navy in 1979. He received his juris doctorate in 1985 from the University of Washington. He served in the U.S...
reached the same conclusion in the case of Salim Ahmed Hamdan
Salim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....
.
The United States Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures." That position was called "dead wrong" by Specter.
Court challenge
On December 13, 2006, Salim Ahmed HamdanSalim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....
challenged the MCA's declination of habeas corpus to "alien unlawful enemy combatants" in the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
. Judge James Robertson
James Robertson (judge)
James Robertson is a United States federal judge serving on the United States District Court for the District of Columbia.Born in Cleveland, Ohio, Robertson graduated from Western Reserve Academy in Hudson, Ohio, and received a B.A. from Princeton University in 1959. He served in the United States...
, who ruled in favor of Hamdan in the Hamdan v. Rumsfeld case, refused to rule in favor of Hamdan in this case regarding habeas corpus, writing:
- "The Constitution does not provide alien enemy combatants detained at Guantanamo Bay with the constitutional right to file a petition for habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
in our civilian courts, and thus Congress may regulate those combatants' access to the courts".
In April 2007, the Supreme Court declined to hear two cases challenging the MCA: Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
and Al Odah v. United States
Al Odah v. United States
Al Odah v. United States is a court case filed by the Center for Constitutional Rights and co-counsels challenging the legality of the continued detention, without charge, of Guantanamo detainees. The case is in many ways a continuation of the landmark Center for Constitutional Rights case Rasul v....
On June 29, 2007, the court reversed that decision, releasing an order that expressed their intent to hear the challenge. The two cases have been consolidated into one. Oral arguments were heard on December 5, 2007. The decision, extending habeas corpus rights to alien unlawful enemy combatants but allowing the commissions to continue to prosecute war crimes, was handed down on June 12, 2008.
Even though detainees now have the right to challenge the government's basis of their detention, that does not guarantee release as evidenced by the Dec 14th, 2009 ruling of U.S. District Judge Thomas F. Hogan who upheld continued detention of Musa'ab Al-Madhwani in Guantanamo Bay, Cuba even though the court determined that he was not a continuing threat, the government met its burden of proving he was a member of al-Qaeda.
See also
- Amnesty lawAmnesty lawAn amnesty law is any law that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for crimes committed.Most allegations involve human rights abuses and crimes against humanity.-History:...
- Criminal Investigation Task Force
- Detainee Treatment ActDetainee Treatment ActThe Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
- Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 is a bill introduced by United States Senator John McCain, sponsored by Joe Lieberman and eight other Republican Senators. Its counterpart in the House is H.R...
- Extrajudicial prisoners of the United StatesExtrajudicial prisoners of the United StatesExtrajudicial prisoners of the United States, in the context of the War on Terrorism, refers to foreign nationals the United States detains outside of the legal process required within United States legal jurisdiction. In this context, the U.S...
- Ghost detaineeGhost detaineeGhost detainee is an official term used by the U.S. Government to designate a person held in a detention center, whose identity has been hidden by keeping them unregistered and therefore anonymous. It was also used in the same manner by the Joint Interrogation and Debriefing Center at the Abu...
- Military Commissions Act of 2009Military Commissions Act of 2009The United States House of Representatives passed a bill, known as the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006.Formally, it is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010 ....
- Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees is the full title of a United States Army regulation usually referred to as AR 190-8, that lays out how the United States Army should treat captives....
- Nacht und NebelNacht und NebelNacht und Nebel was a directive of Adolf Hitler on 7 December 1941 signed and implemented by Armed Forces High Command Chief Wilhelm Keitel, resulting in the kidnapping and forced disappearance of many political activists and resistance 'helpers' throughout Nazi Germany's occupied...
- Writ of habeas corpus
Government documents
- Military Commission Act of 2006
- Military Commissions Act of 2006 (as passed by Congress), S.3930, September 22, 2006
- Roll call votes:
- H.R.6054, House version of the Bill, which was not enacted
- Military Commissions Act of 2006 (proposed), text of Bill, hosted at Georgetown LawGeorgetown University Law CenterGeorgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
website. - Cost Estimate, H.R. 6054, Congressional Budget OfficeCongressional Budget OfficeThe Congressional Budget Office is a federal agency within the legislative branch of the United States government that provides economic data to Congress....
, as ordered reported by the United States House Committee on Armed ServicesUnited States House Committee on Armed Servicesthumb|United States House Committee on Armed Services emblemThe U.S. House Committee on Armed Services, commonly known as the House Armed Services Committee, is a standing committee of the United States House of Representatives...
, September 15, 2006 - Full Committee Markup, H.R. 6054, United States House Committee on Armed ServicesUnited States House Committee on Armed Servicesthumb|United States House Committee on Armed Services emblemThe U.S. House Committee on Armed Services, commonly known as the House Armed Services Committee, is a standing committee of the United States House of Representatives...
, September 13, 2006, Chairman: Duncan HunterDuncan HunterDuncan Lee Hunter is an American politician. He was a Republican member of the House of Representatives from California's 52nd, 45th and 42nd districts from 1981 to 2009.... - WashingtonWatch.com page on H.R. 6054: The Military Commissions Act of 2006
Media articles/press releases
- The Christian Science Monitor: Will the Supreme Court shackle new tribunal law?
- Senate Passes Bill on Detainee Interrogations, Washington Post, September 29, 2006; Page A01.
- Statement by President Bush, PRNewswire, Source: White House Press Office, September 28, 2006
- WILEY RUTLEDGE, EXECUTIVE DETENTION, AND JUDICIAL CONSCIENCE AT WAR, By Craig Green, 2006
- Human Rights First; Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects (2008)
- Human Rights First; Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality
- Human Rights First; Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan
Commentary
- Beginning of the end of America, Keith OlbermannKeith OlbermannKeith Theodore Olbermann is an American political commentator and writer. He has been the chief news officer of the Current TV network and the host of Current TV's weeknight political commentary program, Countdown with Keith Olbermann, since June 20, 2011...
, October 19, 2006 - The Military Commissions Act: Congress Commits to the War on Terror, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, October 9, 2006 - Military Commissions Act of 2006 – Turning bad policy into bad law, Amnesty internationalAmnesty InternationalAmnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, September 29, 2006 - A Case for Delaying Military Commissions Legislation, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, September 27, 2006 - History Starts Today: The Perils of Habeas-Stripping, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, September 26, 2006 - 'All the Laws But One': Parsing the Military Commissions Bill, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, September 25, 2006 - How the Compromise Detainee Legislation Guts Common Article 3, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
, September 25, 2006 - Habeas Corpus: A Vital Tool in the War on Terror
- Military Commissions Act 2006—Unchecked Powers?, Globalissues.org
- The Military Commissions Act of 2006 - commentary by the Ayn Rand InstituteAyn Rand InstituteThe Ayn Rand Institute: The Center for the Advancement of Objectivism is a 501 nonprofit think tank in Irvine, California that promotes Ayn Rand's philosophy, called Objectivism. It was established in 1985, three years after Rand's death, by Leonard Peikoff, Rand's legal heir...
critical of the Military Commissions Act - 2006 going on 1984 Benjamin Dunphy, The Pacifican
- The Torture Bill - Essay collection at the Center for a World in Balance
- Human Rights First; Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan