ACTION ALERT: THE CENTER FOR CONSTITUTIONAL RIGHTS: AUG.4, 2007...THE PROBLEM CONTINUES DESPITE THE SUPREME COURTS RULING...WHAT DO YOU DO WHEN NO ONE IS LISTENING AND YOUR GOVERNMENT WILL NOT OBEY THE LAW OF THE LAND; YOU ACT!
THIS SHIT WILL NOT STOP UNTIL
"WE THE PEOPLE" PUT AN
END TO IT!
Send a letter to your representatives demanding the restoration of habeas corpus The Military Commissions Act of 2006 (MCA) was the latest effort by the Bush administration to usher in a new era where respect for human rights and the rule of law do not apply. Under its provisions, the almost 400 detainees who remain at Guantánamo Bay, and those held at “black sites” throughout the world, will continue to be denied a day in court. To take action against the MCA click here. To learn more, click here.
MILITARY COMMISSIONS ACT OF 2006
LEGISLATIVE HISTORY
The Military Commissions Act was prompted, in part, by the U.S. Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld which rejected the President’s creation of military commissions by executive fiat and held unequivocally that the protections of Common Article 3 of the Geneva Conventions applies in the context of the conflict with Al Qaeda.
According to Administration statements, the Act was also prompted by concerns among CIA interrogators that the Detainee Treatment Act's prohibition of torture and coercive Interrogations implied potential liability for the perpetrators and disbanding of the program of interrogation in secret CIA prisons.
The MCA was passed in the House by a vote of 250 to 70.1 The law was passed in the Senate by a vote of 65 to 34.2 Five proposed amendments failed in the Senate by a narrow margin.
Senator Specter (R-PA) proposed an amendment which would have removed the MCA’s jurisdiction stripping provision. This amendment failed by a vote of 51-48.3 The MCA was signed into law by President Bush on October 17, 2006.
THE LAW
The Military Commissions Act4: Creates a broad definition of “unlawful enemy combatant” [Sec. 3(a)(1), amending § 948(a)(1)];
Severely limits the avenues of judicial review for non-citizens held in U.S. custody, aiming to
eliminate both habeas and post-release civil challenges, thus effectively sanctioning indefinite
detention and abusive interrogations of non-citizens and limiting accountability.
eliminate both habeas and post-release civil challenges, thus effectively sanctioning indefinite
detention and abusive interrogations of non-citizens and limiting accountability.
[Sec. 7]; Permits coercive interrogations and torture by creating narrow re-definitions, limiting judicial review, and allowing for statements obtained under torture or coercion to be used in prosecutions in some instances [Sec. 3(a)(1), amending §§ 948r, 949a(b)(2)(C), 949d(f)(2)(B-C), 949j(c)(2), 950v(b)(11), 950v(b)(12); Sec. 6(b)(1)(B); Sec. 6(b)(2); Sec. 6(c); Sec. 7];
Authorizes military commissions which do not satisfy fundamental due process requirements
and with procedures which deviate markedly from criminal trials in civilian courts, courts-martial under military law, and international criminal trials [Sec. 3(a)(1), amending §§ 948b(d), 948j, 948q(b), 948r, 949a(b), 949c(b)(4), 949d(d-f), 949j(c-d), 950b, 950c, 950f, 950p(a), 950v(b);
and with procedures which deviate markedly from criminal trials in civilian courts, courts-martial under military law, and international criminal trials [Sec. 3(a)(1), amending §§ 948b(d), 948j, 948q(b), 948r, 949a(b), 949c(b)(4), 949d(d-f), 949j(c-d), 950b, 950c, 950f, 950p(a), 950v(b);
Sec. 4(b)]; Narrows the scope of the War Crimes Act, the U.S. mechanism for criminal prosecution of war crimes [Sec. 6]; Narrows the definitions of rape and sexual assault or abuse in defining crimes triable by military commission or subject to prosecution under the War Crimes Act [Sec. 3(a)(1), amending § 950v(21-22);
Sec. 6(b)]; Confers retroactive immunity on some U.S. officials who have engaged in illegal actions which have been authorized by the Executive [Sec. 6(b)(2); Sec. 7; Sec. 8]; and
Limits the use of international law in U.S. courts [Sec. 3(a)(1), amending §§ 948b(f), 948b(g); Sec. 5(a); Sec. 6].
Military Commissions Act of 2006: A Summary of the Law
The MCA creates a broad definition of “unlawful enemy combatant,” a designation nonexistent in international law.
The MCA creates a dangerously broad definition of “unlawful enemy combatant.” The laws of war require that an individual be classified appropriately under the Geneva Conventions and receive all the protections and rights emanating from that designation.
The term “unlawful enemy combatant”was created by the Bush Administration and does not exist within international law. Thus, the MCA definition attempts to undermine the laws of war to which all civilized nations have agreed to adhere. The MCA is the first instance in which “unlawful enemy combatant” is statutorily defined.
The MCA defines an unlawful enemy combatant ("UEC") as any person who (1) “has engaged in
hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” or (2) has been deemed an enemy combatant by a Combatant Status
Review Tribunal or “another competent tribunal” under the authority of the President or Defense Secretary.
The first prong of the definition is overbroad. As noted above, it includes detainees engaged in
hostilities who, under the Geneva Conventions, would have been classified appropriately, including as prisoners of war or protected persons, i.e., members of armed forces who have laid down their arms or been placed hors de combat and would have received all the protections and rights emanating from that designation.
For instance, members of the Taliban and “associated forces” now are presumptively classified as unlawful enemy combatants instead of prisoners of war.
In addition, it includes those who have not been directly involved in hostilities but who have only provided “material support.” In other contexts, the U.S. government has interpreted “material support” expansively.
For instance, in the refugee context, the provision of a glass of water or an insubstantial “war tax” to a terrorist group, even under duress, has been classified as material support to terrorism.
The second prong of the definition could swallow the first. It delegates to the President or Secretary of Defense relatively unrestricted power to deem anyone an unlawful enemy combatant.
It sanctions the determinations made by Guantánamo’s much-criticized Combatant Status Review Tribunals (CSRTs).
Further, it authorizes the President or Secretary of Defense to create undefined tribunals with the power to classify individuals as “unlawful enemy combatants.” The only statutory limitation on these tribunals is that they be “competent.”
The definitions established in the MCA are part of the Administration’s attempt to develop an
entirely new terminology to carry out post-September 11 detention, interrogation and trial
operations. In addition to creating a dramatically overbroad “unlawful enemy combatant”
definition, the MCA also defines a category of “lawful enemy combatants” that does not
correspond to any category in international law.
Furthermore, the use of the term “hostilities”, which is undefined and open to broad interpretation, is a deviation from “armed conflict” as used in the Geneva Conventions and in international humanitarian law.
The MCA’s definition of “unlawful enemy combatant” does not distinguish between citizens and
non-citizens. However, all substantive provisions of the Act which limit the rights of unlawful
enemy combatants apply exclusively to non-citizens.
Military Commissions Act of 2006: A Summary of the Law
The MCA severely limits the avenues of judicial review for non-citizens held in U.S.custody, thus effectively sanctioning indefinite detention and abusive interrogations.
The MCA aims to eliminate judicial review for any claims challenging any aspect of detention or
treatment of all non-citizen detainees determined to be “enemy combatants,” or “awaiting such
determination.”12 This jurisdiction-stripping provision is intended to apply to both habeas and nonhabeas claims. The Administration contends that the MCA’s jurisdiction-stripping provision applies retroactively to all cases brought on behalf of non-citizens detained since September 11, 2001, anywhere in the world.
The MCA ratifies the severely limited CSRT review process, established under the DTA, as a
substitute for habeas corpus review. The DTA/MCA situates this review mechanism exclusively in the United States Court of Appeals for the District of Columbia ("D.C. Circuit"). This review
mechanism provides for a narrow scope of review and is only applicable once a “final decision” of
the CSRT has been rendered.
Under the DTA/MCA, the D.C. Circuit is only authorized to consider (1) whether the military complied with its own flawed CSRT procedures for making enemy combatant determinations; and (2) whether those procedures comply with the Constitution and laws of the United States, “to the extent the Constitution and laws of the United States are applicable.”
As the Government asserts that the laws and Constitution do not apply to detainees held in
Guantánamo or outside of the United States, the government contemplates an extraordinarily
narrow scope of review.
If the jurisdiction-stripping provision survives judicial review and is held to apply retroactively, it will effectively sanction the indefinite detention and abusive interrogation of non-citizens detained inside and outside the United States. The Executive has asserted that this is a war without end, and that international law permits indefinite detention of those captured in wartime.
And while the DTA and other laws prohibit torture and cruel, inhuman or degrading treatment, the lack of judicial review makes this a right without a remedy. Under a broad reading, the President would need only to assert that a non-citizen is “awaiting determination” as to whether or not s/he is an enemy combatant to deny her/him access to the courts.
The MCA permits coercive interrogations and torture by creating narrow re-definitions,
limiting judicial review, and allowing for statements obtained under torture or coercion
to be used in prosecutions in some instances.
The MCA permits torture and coercive interrogations because the law creates a narrow definition of torture and cruel or inhuman treatment and permits statements obtained under torture or coercive interrogation to be entered into evidence in a military commission without inquiry into the source of the statement.
The express limitations on judicial review, discussed above, also limit the avenues for
detainees to assert that they have suffered torture or cruel, inhuman or degrading treatment.
First, the MCA creates unacceptably restrictive definitions of torture and cruel or inhuman treatment so that many harsh forms of interrogation would arguably not fit within these definitions.
“Torture” and “cruel or inhuman treatment” are narrowly defined to require intentionality, including specific intent to prove torture, and the infliction of, respectively, “severe” or “serious” physical or mental pain or suffering.”17 After the MCA’s amendment, “cruel or inhuman treatment” is punishable under the War Crimes Act ("WCA") as a grave breach of Common Article 3 of the Geneva Conventions ("CA3") only to the extent it would violate the Fifth, Eighth and Fourteenth Amendments to the Constitution.
Under the MCA, for treatment to rise to the level of “serious Military Commissions Act of 2006:
A Summary of the Law
physical or mental pain or suffering,” it must involve a “substantial risk of death,” “extreme physical pain,” a “serious” burn or physical disfigurement, or “significant loss or impairment of the function of a bodily member, organ, or mental faculty.”
Second, the legislation permits evidence obtained by coercion to be used against a defendant in a
military commission.20 While the law explicitly prohibits the introduction of evidence obtained by torture, the MCA defines torture so narrowly that evidence obtained under treatment that amounts to torture could be considered admissible.
Further, the MCA explicitly permits the introduction of coerced evidence obtained prior to the enactment of the DTA if a judge considers it reliable and relevant, and coerced evidence obtained after the DTA’s enactment if it satisfies the aforementioned requirements and the coercion did not amount to cruel, inhuman or degrading treatment.
The Administration would have license to argue that the MCA permits the introduction of evidence obtained through the extremely abusive interrogation techniques believed to have been used most before December 2005.
Third, the MCA limits inquiry into whether evidence was obtained through torture or coercive
interrogations.21 In addition to the general limitations on judicial review discussed above, the MCA denies the defendant the right to challenge classified “sources, methods, or activities.” This will limit the defendant’s right to ascertain information that would demonstrate that statements admitted into evidence were obtained under torture or cruel, inhuman or degrading treatment.
The MCA includes a provision explicitly prohibiting cruel, inhuman or degrading treatment or
punishment.22 However, this provision is identical to the McCain Amendment to the Detainee
Treatment Act and does not add or codify any new protections.
The MCA authorizes military commissions which do not satisfy fundamental due process requirements or with procedures which deviate markedly from criminal trials in civilian courts, courts-martial under military law, and international criminal trials.
The MCA establishes procedures that depart significantly from the domestic and international law requirements of a fair trial. Among the most egregious deviations are the following:
The MCA denies the accused the right to be informed promptly, at the time of his detention,
of the nature and cause of the charges against him. Under the MCA, the accused is informed of the charges against him “as soon as practicable,” but no time frame is specified and there are no sanctions or remedy for a delay.
The MCA explicitly rejects the right to a speedy trial.
The MCA allows for secret trials. The MCA provides that the military judge “may close all
or part of the proceedings of a military commission” to the public.
Indeed, the MCA specifies that the trial may continue in the absence of the accused.
The MCA denies the accused the right to a trial before an independent and impartial court
or tribunal. The procedure for appointing military judges is left to the discretion of the
Secretary of Defense.
The MCA allows for offenses that have not previously been considered war crimes to be
tried by military commission. This includes “conspiracy” and “providing material support
to terrorism.”29 These offenses could lead to charges by military commission for relatively
insignificant activities.
Military Commissions Act of 2006: A Summary of the Law
The MCA denies the accused the right to examine or have examined witnesses on his behalf
under the same conditions as witnesses against him. Defense counsel are only permitted a
“reasonable opportunity” to obtain witnesses and other evidence “as provided in regulations
prescribed by the Secretary of Defense.”
The MCA denies the accused full access to exculpatory evidence known to the
government.
The MCA allows for the introduction of certain coerced evidence at military commission
hearings.
The MCA permits the introduction of hearsay and evidence obtained without a warrant or
probable cause.
The MCA permits the introduction of hearsay if a judge considers it
reliable and probative.
The MCA permits the introduction of evidence obtained without a warrant or probable cause, even if such evidence was obtained within the United States. A military commission defendant can be convicted on the basis of secret evidence.
The MCA requires that classified evidence be protected. It requires only that unclassified
redactions or summaries be provided to a detainee “to the extent practicable.”
The MCA does not provide for an independent review of convictions and sentences.
The MCA narrows the scope of the War Crimes Act, the U.S. mechanism for criminal
prosecution of war crimes.
The War Crimes Act (18 USC 2441) was enacted in 1996 to allow for the criminal prosecution of
war crimes within U.S. courts.36 The WCA provides for the prosecution of war crimes committed inside or outside of the United States when either the victim or the alleged perpetrator is a U.S. national or member of the U.S. Armed Forces. Prior to the MCA, the WCA included in the definition of a war crime any violation of Common Article 3 (CA3) of the Geneva Conventions.
Among other protections, CA3 prohibits the use of torture, cruel treatment and other outrages
against the dignity of persons in custody.37 In the ten years since the enactment of the WCA, no
person has been criminally prosecuted under its provisions.
In Hamdan, the Supreme Court held that the protections of CA3 apply in the context of the conflict with Al Qaeda.38 This ruling supported the legal argument that, absent an amendment to the WCA, U.S. officials involved in controversial policies and practices carried out as part of the “war on terror” could be held accountable for committing “outrages upon personal dignity, in particular humiliating and degrading treatment” or “violence to life and person,” including “cruel treatment and torture.”
The MCA limits the scope of offenses which could be prosecuted under the WCA. Prior to the
MCA, any violation of CA3 was a criminal act that could be prosecuted under the WCA.
That is no longer true.
The MCA amended the WCA so that it criminalizes only certain enumerated “grave breaches” of Common Article 3: torture; cruel or inhuman treatment; performing biological experiments; murder, mutilating or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and hostage-taking.
After the MCA, any other violations of CA3 are not defined as “grave breaches” and cannot be prosecuted under the WCA.
Furthermore, torture and cruel or inhuman treatment are defined narrowly for the purposes of war crimes prosecutions under the WCA. The MCA’s restricted definitions arguably would exempt certain U.S. officials who have Military Commissions Act of 2006: A Summary of the Law implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions.
Under the MCA, the President has sole discretion to punish other violations of the Geneva
Conventions that do not rise to the level of “grave breaches” – including degrading treatment in
violation of Common Article 3 – and to approve whatever interrogation techniques he deems legal and appropriate.
The MCA’s amendments to the WCA apply retroactively to November 1997. This amendment is
designed to protect U.S. government perpetrators of abuses during the "war on terror" from
prosecution.
The MCA narrows the definitions of rape and sexual assault or abuse in defining crimes
triable by military commission or subject to prosecution under the War Crimes Act.
The definitions of rape and sexual assault or abuse in the MCA are significantly narrower than the definitions of those crimes in international law and in many state laws.
Within the MCA, the definition of rape requires penetration of the anus or genitals with a part of the body or a foreign object through force or coercion. The MCA definition of sexual assault or abuse requires physical sexual assault, as well as proof of force, coercion or the threat of force.
These definitions could be interpreted to limit the forms of abuse that can rise to the level of a
crime. They exclude “outrages upon personal dignity,” which have been used in international
tribunals to prosecute such sexual abuse as forced nakedness and other forms of mental abuse.
The requirement of sexual contact in the definition of sexual assault and abuse could be interpreted to mean physical contact and exclude abuses such as those witnessed in Abu Ghraib when they do not amount to torture. The definition of rape does not include forced oral copulation despite its inclusion under international law.
Moreover, the requirement for a showing of force, coercion or threat of force ignores that rape
occurs whenever the victim does not give free and voluntary consent. International criminal
tribunals have recognized that a perpetrator may commit rape, sexual assault, or sexual abuse by taking advantage of coercive circumstances without exercising direct coercion.
The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive.
Provisions of the MCA attempt to confer retroactive immunity on officials engaged in abusive
interrogations and treatment in Guantánamo, Abu Ghraib, Bagram, and other detention locations around the world.
First, as mentioned above, the MCA amends the WCA to limit the offenses which can be
prosecuted. The MCA’s amendments to the WCA apply retroactively to November 1997.
Second, the MCA immunizes military and intelligence officials from criminal prosecution for
detention and interrogation practices that occurred between September 11, 2001 and the DTA.47 A provision in the DTA provides protection against prosecution for U.S. Government personnel “engaged in authorized interrogations.” The MCA makes this protection retroactive to September 11, 2001.
Military Commissions Act of 2006: A Summary of the Law
Finally, the MCA prohibits civil suits “relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement” for non-citizens detained by the U.S. and “determined to be an enemy combatant” or “awaiting such determination.” This provision applies to pending and future cases of non-citizens detained since September 11, 2001.50 While not actively immunizing government officials, this provision serves to further limit challenges to illegal government conduct by cutting off the ability to seek redress through civil proceedings, such as the Alien Tort Statute, U.S. civil rights statutes or the Religious Freedom Restoration Act.
The MCA places limitations on the use of international law in U.S. courts and seeks to re-write U.S. obligations under international law.
The MCA limits the use of international law in domestic courts in two ways. First, the MCA
prohibits a U.S. court from referring to a foreign or international source of law to determine
whether Common Article 3 of the Geneva Conventions has been violated under the War Crimes
Act.51
Second, the Act prohibits the invocation of the Geneva Conventions as a “source of rights” in any
habeas or other civil proceeding for citizens or non-citizens challenging the actions of United States or government officials. Further, the Act prohibits non-citizen detainees who are “subject to trial by military commission” from invoking the Geneva Conventions “as a source of rights,” whether or not the detainee is ever actually tried by military commissions. Because of the breadth of the “unlawful enemy combatant” definition, virtually all non-citizen detainees could be deemed “subject to trial by military commission.”
Moreover, the MCA seeks to rewrite U.S. obligations under international law. In addition to creating a system which does not satisfy our obligations under international law to provide due process to defendants, the MCA creates a two-tiered system of offences within Common Article 3 of the Geneva Conventions, namely “grave breaches” of Common Article 3, which fall within the scope of the amended War Crimes Act, and other offences, enumerated in CA3, including “outrages upon personal dignity,” which do not
LEGAL CHALLENGES TO THE MCA
CCR is challenging the jurisdiction-stripping provision of the MCA through pending and new
habeas petitions. Prior to the enactment of the MCA, CCR filed new habeas petitions on behalf of
25 men detained in the U.S. military base in Bagram, Afghanistan. In addition, CCR filed a habeas petition on behalf of Majid Khan, a Pakistani refugee whose family lives in Baltimore and who was held in CIA ghost detention sites before being transferred to Guantánamo in early September 2006.
Finally, immediately prior to, and then subsequent to, the enactment of the MCA, CCR filed a total of thirty habeas corpus petitions on behalf of men detained in Guantánamo who had previously only been part of the group-based Doe v. Bush litigation. All of these petitions, as well as all pending habeas corpus petitions, represent challenges to the MCA because the MCA aims to retroactively strip the courts of habeas jurisdiction.
Limits the use of international law in U.S. courts [Sec. 3(a)(1), amending §§ 948b(f), 948b(g); Sec. 5(a); Sec. 6].
Military Commissions Act of 2006: A Summary of the Law
The MCA creates a broad definition of “unlawful enemy combatant,” a designation nonexistent in international law.
The MCA creates a dangerously broad definition of “unlawful enemy combatant.” The laws of war require that an individual be classified appropriately under the Geneva Conventions and receive all the protections and rights emanating from that designation.
The term “unlawful enemy combatant”was created by the Bush Administration and does not exist within international law. Thus, the MCA definition attempts to undermine the laws of war to which all civilized nations have agreed to adhere. The MCA is the first instance in which “unlawful enemy combatant” is statutorily defined.
The MCA defines an unlawful enemy combatant ("UEC") as any person who (1) “has engaged in
hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” or (2) has been deemed an enemy combatant by a Combatant Status
Review Tribunal or “another competent tribunal” under the authority of the President or Defense Secretary.
The first prong of the definition is overbroad. As noted above, it includes detainees engaged in
hostilities who, under the Geneva Conventions, would have been classified appropriately, including as prisoners of war or protected persons, i.e., members of armed forces who have laid down their arms or been placed hors de combat and would have received all the protections and rights emanating from that designation.
For instance, members of the Taliban and “associated forces” now are presumptively classified as unlawful enemy combatants instead of prisoners of war.
In addition, it includes those who have not been directly involved in hostilities but who have only provided “material support.” In other contexts, the U.S. government has interpreted “material support” expansively.
For instance, in the refugee context, the provision of a glass of water or an insubstantial “war tax” to a terrorist group, even under duress, has been classified as material support to terrorism.
The second prong of the definition could swallow the first. It delegates to the President or Secretary of Defense relatively unrestricted power to deem anyone an unlawful enemy combatant.
It sanctions the determinations made by Guantánamo’s much-criticized Combatant Status Review Tribunals (CSRTs).
Further, it authorizes the President or Secretary of Defense to create undefined tribunals with the power to classify individuals as “unlawful enemy combatants.” The only statutory limitation on these tribunals is that they be “competent.”
The definitions established in the MCA are part of the Administration’s attempt to develop an
entirely new terminology to carry out post-September 11 detention, interrogation and trial
operations. In addition to creating a dramatically overbroad “unlawful enemy combatant”
definition, the MCA also defines a category of “lawful enemy combatants” that does not
correspond to any category in international law.
Furthermore, the use of the term “hostilities”, which is undefined and open to broad interpretation, is a deviation from “armed conflict” as used in the Geneva Conventions and in international humanitarian law.
The MCA’s definition of “unlawful enemy combatant” does not distinguish between citizens and
non-citizens. However, all substantive provisions of the Act which limit the rights of unlawful
enemy combatants apply exclusively to non-citizens.
Military Commissions Act of 2006: A Summary of the Law
The MCA severely limits the avenues of judicial review for non-citizens held in U.S.custody, thus effectively sanctioning indefinite detention and abusive interrogations.
The MCA aims to eliminate judicial review for any claims challenging any aspect of detention or
treatment of all non-citizen detainees determined to be “enemy combatants,” or “awaiting such
determination.”12 This jurisdiction-stripping provision is intended to apply to both habeas and nonhabeas claims. The Administration contends that the MCA’s jurisdiction-stripping provision applies retroactively to all cases brought on behalf of non-citizens detained since September 11, 2001, anywhere in the world.
The MCA ratifies the severely limited CSRT review process, established under the DTA, as a
substitute for habeas corpus review. The DTA/MCA situates this review mechanism exclusively in the United States Court of Appeals for the District of Columbia ("D.C. Circuit"). This review
mechanism provides for a narrow scope of review and is only applicable once a “final decision” of
the CSRT has been rendered.
Under the DTA/MCA, the D.C. Circuit is only authorized to consider (1) whether the military complied with its own flawed CSRT procedures for making enemy combatant determinations; and (2) whether those procedures comply with the Constitution and laws of the United States, “to the extent the Constitution and laws of the United States are applicable.”
As the Government asserts that the laws and Constitution do not apply to detainees held in
Guantánamo or outside of the United States, the government contemplates an extraordinarily
narrow scope of review.
If the jurisdiction-stripping provision survives judicial review and is held to apply retroactively, it will effectively sanction the indefinite detention and abusive interrogation of non-citizens detained inside and outside the United States. The Executive has asserted that this is a war without end, and that international law permits indefinite detention of those captured in wartime.
And while the DTA and other laws prohibit torture and cruel, inhuman or degrading treatment, the lack of judicial review makes this a right without a remedy. Under a broad reading, the President would need only to assert that a non-citizen is “awaiting determination” as to whether or not s/he is an enemy combatant to deny her/him access to the courts.
The MCA permits coercive interrogations and torture by creating narrow re-definitions,
limiting judicial review, and allowing for statements obtained under torture or coercion
to be used in prosecutions in some instances.
The MCA permits torture and coercive interrogations because the law creates a narrow definition of torture and cruel or inhuman treatment and permits statements obtained under torture or coercive interrogation to be entered into evidence in a military commission without inquiry into the source of the statement.
The express limitations on judicial review, discussed above, also limit the avenues for
detainees to assert that they have suffered torture or cruel, inhuman or degrading treatment.
First, the MCA creates unacceptably restrictive definitions of torture and cruel or inhuman treatment so that many harsh forms of interrogation would arguably not fit within these definitions.
“Torture” and “cruel or inhuman treatment” are narrowly defined to require intentionality, including specific intent to prove torture, and the infliction of, respectively, “severe” or “serious” physical or mental pain or suffering.”17 After the MCA’s amendment, “cruel or inhuman treatment” is punishable under the War Crimes Act ("WCA") as a grave breach of Common Article 3 of the Geneva Conventions ("CA3") only to the extent it would violate the Fifth, Eighth and Fourteenth Amendments to the Constitution.
Under the MCA, for treatment to rise to the level of “serious Military Commissions Act of 2006:
A Summary of the Law
physical or mental pain or suffering,” it must involve a “substantial risk of death,” “extreme physical pain,” a “serious” burn or physical disfigurement, or “significant loss or impairment of the function of a bodily member, organ, or mental faculty.”
Second, the legislation permits evidence obtained by coercion to be used against a defendant in a
military commission.20 While the law explicitly prohibits the introduction of evidence obtained by torture, the MCA defines torture so narrowly that evidence obtained under treatment that amounts to torture could be considered admissible.
Further, the MCA explicitly permits the introduction of coerced evidence obtained prior to the enactment of the DTA if a judge considers it reliable and relevant, and coerced evidence obtained after the DTA’s enactment if it satisfies the aforementioned requirements and the coercion did not amount to cruel, inhuman or degrading treatment.
The Administration would have license to argue that the MCA permits the introduction of evidence obtained through the extremely abusive interrogation techniques believed to have been used most before December 2005.
Third, the MCA limits inquiry into whether evidence was obtained through torture or coercive
interrogations.21 In addition to the general limitations on judicial review discussed above, the MCA denies the defendant the right to challenge classified “sources, methods, or activities.” This will limit the defendant’s right to ascertain information that would demonstrate that statements admitted into evidence were obtained under torture or cruel, inhuman or degrading treatment.
The MCA includes a provision explicitly prohibiting cruel, inhuman or degrading treatment or
punishment.22 However, this provision is identical to the McCain Amendment to the Detainee
Treatment Act and does not add or codify any new protections.
The MCA authorizes military commissions which do not satisfy fundamental due process requirements or with procedures which deviate markedly from criminal trials in civilian courts, courts-martial under military law, and international criminal trials.
The MCA establishes procedures that depart significantly from the domestic and international law requirements of a fair trial. Among the most egregious deviations are the following:
The MCA denies the accused the right to be informed promptly, at the time of his detention,
of the nature and cause of the charges against him. Under the MCA, the accused is informed of the charges against him “as soon as practicable,” but no time frame is specified and there are no sanctions or remedy for a delay.
The MCA explicitly rejects the right to a speedy trial.
The MCA allows for secret trials. The MCA provides that the military judge “may close all
or part of the proceedings of a military commission” to the public.
Indeed, the MCA specifies that the trial may continue in the absence of the accused.
The MCA denies the accused the right to a trial before an independent and impartial court
or tribunal. The procedure for appointing military judges is left to the discretion of the
Secretary of Defense.
The MCA allows for offenses that have not previously been considered war crimes to be
tried by military commission. This includes “conspiracy” and “providing material support
to terrorism.”29 These offenses could lead to charges by military commission for relatively
insignificant activities.
Military Commissions Act of 2006: A Summary of the Law
The MCA denies the accused the right to examine or have examined witnesses on his behalf
under the same conditions as witnesses against him. Defense counsel are only permitted a
“reasonable opportunity” to obtain witnesses and other evidence “as provided in regulations
prescribed by the Secretary of Defense.”
The MCA denies the accused full access to exculpatory evidence known to the
government.
The MCA allows for the introduction of certain coerced evidence at military commission
hearings.
The MCA permits the introduction of hearsay and evidence obtained without a warrant or
probable cause.
The MCA permits the introduction of hearsay if a judge considers it
reliable and probative.
The MCA permits the introduction of evidence obtained without a warrant or probable cause, even if such evidence was obtained within the United States. A military commission defendant can be convicted on the basis of secret evidence.
The MCA requires that classified evidence be protected. It requires only that unclassified
redactions or summaries be provided to a detainee “to the extent practicable.”
The MCA does not provide for an independent review of convictions and sentences.
The MCA narrows the scope of the War Crimes Act, the U.S. mechanism for criminal
prosecution of war crimes.
The War Crimes Act (18 USC 2441) was enacted in 1996 to allow for the criminal prosecution of
war crimes within U.S. courts.36 The WCA provides for the prosecution of war crimes committed inside or outside of the United States when either the victim or the alleged perpetrator is a U.S. national or member of the U.S. Armed Forces. Prior to the MCA, the WCA included in the definition of a war crime any violation of Common Article 3 (CA3) of the Geneva Conventions.
Among other protections, CA3 prohibits the use of torture, cruel treatment and other outrages
against the dignity of persons in custody.37 In the ten years since the enactment of the WCA, no
person has been criminally prosecuted under its provisions.
In Hamdan, the Supreme Court held that the protections of CA3 apply in the context of the conflict with Al Qaeda.38 This ruling supported the legal argument that, absent an amendment to the WCA, U.S. officials involved in controversial policies and practices carried out as part of the “war on terror” could be held accountable for committing “outrages upon personal dignity, in particular humiliating and degrading treatment” or “violence to life and person,” including “cruel treatment and torture.”
The MCA limits the scope of offenses which could be prosecuted under the WCA. Prior to the
MCA, any violation of CA3 was a criminal act that could be prosecuted under the WCA.
That is no longer true.
The MCA amended the WCA so that it criminalizes only certain enumerated “grave breaches” of Common Article 3: torture; cruel or inhuman treatment; performing biological experiments; murder, mutilating or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and hostage-taking.
After the MCA, any other violations of CA3 are not defined as “grave breaches” and cannot be prosecuted under the WCA.
Furthermore, torture and cruel or inhuman treatment are defined narrowly for the purposes of war crimes prosecutions under the WCA. The MCA’s restricted definitions arguably would exempt certain U.S. officials who have Military Commissions Act of 2006: A Summary of the Law implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions.
Under the MCA, the President has sole discretion to punish other violations of the Geneva
Conventions that do not rise to the level of “grave breaches” – including degrading treatment in
violation of Common Article 3 – and to approve whatever interrogation techniques he deems legal and appropriate.
The MCA’s amendments to the WCA apply retroactively to November 1997. This amendment is
designed to protect U.S. government perpetrators of abuses during the "war on terror" from
prosecution.
The MCA narrows the definitions of rape and sexual assault or abuse in defining crimes
triable by military commission or subject to prosecution under the War Crimes Act.
The definitions of rape and sexual assault or abuse in the MCA are significantly narrower than the definitions of those crimes in international law and in many state laws.
Within the MCA, the definition of rape requires penetration of the anus or genitals with a part of the body or a foreign object through force or coercion. The MCA definition of sexual assault or abuse requires physical sexual assault, as well as proof of force, coercion or the threat of force.
These definitions could be interpreted to limit the forms of abuse that can rise to the level of a
crime. They exclude “outrages upon personal dignity,” which have been used in international
tribunals to prosecute such sexual abuse as forced nakedness and other forms of mental abuse.
The requirement of sexual contact in the definition of sexual assault and abuse could be interpreted to mean physical contact and exclude abuses such as those witnessed in Abu Ghraib when they do not amount to torture. The definition of rape does not include forced oral copulation despite its inclusion under international law.
Moreover, the requirement for a showing of force, coercion or threat of force ignores that rape
occurs whenever the victim does not give free and voluntary consent. International criminal
tribunals have recognized that a perpetrator may commit rape, sexual assault, or sexual abuse by taking advantage of coercive circumstances without exercising direct coercion.
The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive.
Provisions of the MCA attempt to confer retroactive immunity on officials engaged in abusive
interrogations and treatment in Guantánamo, Abu Ghraib, Bagram, and other detention locations around the world.
First, as mentioned above, the MCA amends the WCA to limit the offenses which can be
prosecuted. The MCA’s amendments to the WCA apply retroactively to November 1997.
Second, the MCA immunizes military and intelligence officials from criminal prosecution for
detention and interrogation practices that occurred between September 11, 2001 and the DTA.47 A provision in the DTA provides protection against prosecution for U.S. Government personnel “engaged in authorized interrogations.” The MCA makes this protection retroactive to September 11, 2001.
Military Commissions Act of 2006: A Summary of the Law
Finally, the MCA prohibits civil suits “relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement” for non-citizens detained by the U.S. and “determined to be an enemy combatant” or “awaiting such determination.” This provision applies to pending and future cases of non-citizens detained since September 11, 2001.50 While not actively immunizing government officials, this provision serves to further limit challenges to illegal government conduct by cutting off the ability to seek redress through civil proceedings, such as the Alien Tort Statute, U.S. civil rights statutes or the Religious Freedom Restoration Act.
The MCA places limitations on the use of international law in U.S. courts and seeks to re-write U.S. obligations under international law.
The MCA limits the use of international law in domestic courts in two ways. First, the MCA
prohibits a U.S. court from referring to a foreign or international source of law to determine
whether Common Article 3 of the Geneva Conventions has been violated under the War Crimes
Act.51
Second, the Act prohibits the invocation of the Geneva Conventions as a “source of rights” in any
habeas or other civil proceeding for citizens or non-citizens challenging the actions of United States or government officials. Further, the Act prohibits non-citizen detainees who are “subject to trial by military commission” from invoking the Geneva Conventions “as a source of rights,” whether or not the detainee is ever actually tried by military commissions. Because of the breadth of the “unlawful enemy combatant” definition, virtually all non-citizen detainees could be deemed “subject to trial by military commission.”
Moreover, the MCA seeks to rewrite U.S. obligations under international law. In addition to creating a system which does not satisfy our obligations under international law to provide due process to defendants, the MCA creates a two-tiered system of offences within Common Article 3 of the Geneva Conventions, namely “grave breaches” of Common Article 3, which fall within the scope of the amended War Crimes Act, and other offences, enumerated in CA3, including “outrages upon personal dignity,” which do not
LEGAL CHALLENGES TO THE MCA
CCR is challenging the jurisdiction-stripping provision of the MCA through pending and new
habeas petitions. Prior to the enactment of the MCA, CCR filed new habeas petitions on behalf of
25 men detained in the U.S. military base in Bagram, Afghanistan. In addition, CCR filed a habeas petition on behalf of Majid Khan, a Pakistani refugee whose family lives in Baltimore and who was held in CIA ghost detention sites before being transferred to Guantánamo in early September 2006.
Finally, immediately prior to, and then subsequent to, the enactment of the MCA, CCR filed a total of thirty habeas corpus petitions on behalf of men detained in Guantánamo who had previously only been part of the group-based Doe v. Bush litigation. All of these petitions, as well as all pending habeas corpus petitions, represent challenges to the MCA because the MCA aims to retroactively strip the courts of habeas jurisdiction.
CCR BOARD MEMBER DAVID COLE'S ANALYSIS OF PRESIDENT BUSH'S EXECUTIVE ORDER ON TORTURE- from Salon.com - Once upon a time, a U.S. official's condemnation of torture was a statement of moral principle. Today, it is an opportunity for obfuscation. We have learned that when President Bush says, "We don't torture," it's important to read the fine print.
COURT OF APPEALS INCREASES RESTRICTIONS ON ATTORNEY-CLIENT PRIVILEGE AND WITHHOLDS ACCESS TO IMPORTANT GOVERNMENT EVIDENCE IN GUANT�NAMO CASES- On July 20, 2007, the Court of Appeals for the D.C. Circuit issued a ruling in two Detainee Treatment Act (DTA) petitions that, while ostensibly giving attorneys access to all government information for the DTA hearings, would also withhold key evidence that would likely point to torture of detainees. The ruling also includes a new protective order that would drastically curtail the ability of all attorneys to work with clients at Guantanamo and erodes attorney-client privilege.
CCR ARGUES BEFORE PROMINENT INTERNATIONAL HUMAN RIGHTS COMMISSION TO CALL FOR CLOSURE OF GUANTANAMO, FAIR TRIALS FOR DETAINEES, AND SAFE REPATRIATION- On July 20, 2007, Center for Constitutional Rights (CCR) attorneys asked the Inter-American Commission on Human Rights (IACHR) to call for Guantanamo's closure, fair trials for the detainees, and safe repatriation for all detainees upon their release, and argued that the Military Commissions Act of 2006 (MCA) further exacerbates the situation of detainees at the prison camp.
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