Military Commissions Act of 2006

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The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), enacting Chapter 47A of title 10 of the United States Code, is an Act of Congress (Senate Bill 3930^[1]) signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld^[2], the Act's stated purpose is to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."^[3]

Contents 1 Scope of the Act 2 Provisions 3 Applicability 4 Legislative History 4.1 Legislative actions in the Senate 4.1.1 Final Passage in the Senate 4.1.2 Final Passage in the House 5 Official statements 6 Criticism 6.1 On the grounds that the Act is unconstitutional 6.2 On the grounds that the Act applies to U. S. citizens 6.3 On other grounds 7 Support 8 Application 9 See also 10 References 11 External links 11.1 Government documents 11.2 Media articles/press releases 11.3 Commentary

[edit] Scope of the Act

Section 948b of title 10 of the United States Code, as enacted by the Act, provides (in part):

(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.

Section 948d of title 10 of the United States Code, as added by the Act, providing for the jurisdiction of military commissions, states (in part):

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.

Section 948a of title 10 of the United States Code, as added by the Act, defines an "unlawful enemy combatant" as:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a 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.

Section 948c of title 10 U.S.C., as added by the Act, states, "Any alien unlawful enemy combatant is subject to trial by military commission under this chapter" - with "alien" defined in section 948a(3) as "a person who is not a citizen of the United States".

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 defined in Article five of the third Geneva Convention. However, the rights guaranteed by the Third Geneva Convention to lawful military combatants are expressly denied to unlawful military combatants for the purposes of this Act by Section 948b:

(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.^{[4] [5]}

The criteria by which a Combatant Status Review Tribunal may determine someone to be an unlawful enemy combatant under Section ii of the definition are provided by the Detainee Treatment Act of 2005, and referenced in section 10 of the Military Commissions Act of 2006.^[6] The Combatant Status Review Tribunal is be composed of three neutral officers, none of whom was involved with the detainee. One serves as a judge advocate, and the senior ranking officer serves as the president of the tribunal. Detainees may testify before the tribunal, call witnesses, and introduce any other evidence. Following the hearing the tribunal will determine in a closed-door session whether the detainee is properly held as an enemy combatant.^[7] The criteria by which "another competent tribunal" might do so are specified Detainee Treatment Act of 2005.^[8]

[edit] Provisions

The Act changes pre-existing law to explicitly disallow 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. [10 U.S.C. sec. 949c(b)(3)(D)]

• 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 [10 U.S.C. sec. 949m(a)]

• 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. [Act sec. 5(a)]

• 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. [Act sec. 6(a)(3)(A)]

• No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense. [10 U.S.C. sec. 949h(a)].

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:^[9]

(e)(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. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 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.

[edit] Applicability

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, earlier provisions (section 948a) refer to unlawful enemy combantants, not excluding U.S. citizens. Therefore, there is some controversy over whether this law affects the rights of habeas corpus for United States citizens.

Legal and Constitutional scholar Robert A. Levy commented that the Act denies habeas rights only to aliens, and that U.S. citizens detained as "unlawful combatants" would still have habeas rights and could challenge their indefinite detention.^[10] 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-U.S. citizens including all legal aliens. ^[11] CBS legal commentator Andrew Cohen has commented on this question and 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."^[12]

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 Criticisms section.

[edit] Legislative History

The bill passed the Senate, 65-34, on September 28, 2006.^[13]

The bill passed in the House, 250-170-12, on September 29, 2006.^[14]

President George W. Bush signed the bill into law on October 17, 2006.

[edit] 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 Byrd which would have added a sunset provision after five years, an amendment by Ted Kennedy which would have outlawed specific interrogation techniques including waterboarding, 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^[15].

[edit] 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

[edit] 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/no votes

[edit] Official statements

• George W. Bush, President of the United States:

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 Terror. 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^[16].

• John McCain, 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. ^[17].

• Patrick Leahy, 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 Laden 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. ^[18].

[edit] Criticism

[edit] On the grounds that the Act is unconstitutional

A number of legal scholars and Congressional members - including Senate Judiciary Committee Chairman Arlen Specter (R-PA) - have said that 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."^[19]

[edit] On the grounds that the Act applies to U. S. citizens

The Act has also been denounced by critics who assert that its wording makes possible the permanent detention and torture (as defined by the Geneva Conventions) of anyone - including American citizens - based solely on the decision of the President.^[20] Indeed, the wording of section 948b^[21] of the act appears to explicitly contradict the Third Geneva Convention of which the United States is currently a signatory.

In the House debate, Representative David Wu of Oregon 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 Rumsfeld, but she cannot take it across the street to an article 3 court.^[22]

One has 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.^[23] A legal brief filed on Padilla's behalf alleges that during this time he was subjected to sensory deprivation, sleep deprivation, and enforced stress positions.^[24] He continues to be held by the United States.

According to Bill Goodman, Legal Director of the Center for Constitutional Rights, and Joanne Mariner, from FindLaw, 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.

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 Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C.

As such habeas corpus may be denied to US citizens.^[25] 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 the war on terror and unlawful combatant, it is impossible to know where the battlefield is and who combatants are. Also, she notes that already most of the detentions are unlawful.^[26]

The Act also contains the suggestion 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.'^[27]

[edit] On other grounds

Amnesty International said that the Act "contravenes human rights principles."^[28] 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."^[29]

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." ^[30]

Jonathan Turley, professor of constitutional law at George Washington University, in an interview, 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."^[31]

Several commentators observe that the MCA effectively absolves the Bush administration and others for possible crimes committed in the War on Terror by negating the principle of command responsibility. Most notably the US Supreme Court ruled in Hamdan v. Rumsfeld that the Geneva Convention applies to all prisoners. Since the War Crimes Act of 1996 defined any breach of Geneva as a War Crime this opened up the possiblility for legal challenges for anyone involved in the abuse of detainees.^[32] The MCA rewrites the War Crimes Act retroactively to November 26, 1997, making those offenses which were considered War Crimes before the MCA was adopted no longer punishable under US law.^[33] Because of this any investigation into possible wrongdoing in the War on Terror seems unlikely within the United States and therefore the Center for Constitutional Rights and the International Federation for Human Rights have started legal proceedings in Germany, invoking universal jurisdiction.^[34]

[edit] Support

Supporters of the act say that the Constitutional provision guaranteeing habeas corpus 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; therefore they conclude that there is no conflict between the law and the Constitution. National Review columnist Andrew McCarthy argues 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 says 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." ^[35]

Former Administration Justice department official and current professor of law at the University of California, Berkeley, John Yoo, has also commented on the Act calling it a “stinging rebuke” of the Supreme Court overstepping its boundaries in Hamdan v. Rumsfeld ruling, calling the ruling “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy.” Yoo goes on to cite Johnson v. Eisentrager, in which the court decided that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government.^[36] 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 says “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”. ^[37]

[edit] Application

Immediately after President Bush signed the Act into law, the 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.^[38]

[edit] See also

• Extrajudicial prisoners of the United States
• Ghost detainee
• Hamdan v. Rumsfeld
• War on Terrorism
• Writ of habeas corpus
• Enabling Act
• The Siege
• Japanese American internment

[edit] References

[edit] External links

[edit] Government documents

• Military Commissions Act of 2006 (as passed by Congress), S.3930, September 22, 2006
• Roll call votes:
  • Senate:65-34
  • House: 250-170-12
• H.R.6054, House version of the Bill, which was not enacted
• Military Commissions Act of 2006 (proposed), text of Bill, hosted at Georgetown Law website.
• Cost Estimate, H.R. 6054, Congressional Budget Office, as ordered reported by the United States House Committee on Armed Services, September 15, 2006
• Full Committee Markup, H.R. 6054, United States House Committee on Armed Services, September 13, 2006, Chairman: Duncan Hunter
• WashingtonWatch.com page on H.R. 6054: The Military Commissions Act of 2006

[edit] 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

[edit] Commentary

• Beginning of the end of America, Olbermann, October 19, 2006
• The Military Commissions Act: Congress Commits to the War on Terror, JURIST, October 9, 2006
• Military Commissions Act of 2006 – Turning bad policy into bad law, Amnesty international, September 29, 2006
• A Case for Delaying Military Commissions Legislation, JURIST, September 27, 2006
• History Starts Today: The Perils of Habeas-Stripping, JURIST, September 26, 2006
• 'All the Laws But One': Parsing the Military Commissions Bill, JURIST, September 25, 2006
• How the Compromise Detainee Legislation Guts Common Article 3, JURIST, September 25, 2006
• Habeas Corpus: A Vital Tool in the War on Terror
• Military Commissions Act of 2006 at Discourse DB
• The Day King George Was Crowned..., Olbermann, October 17, 2006
• Olbermann on the Murder of Habeus Corpus, Olbermann, October 10, 2006
• The Military Commissions Act of 2006 – how it ensures against torture by defining it away.