Military Commissions Act of 2006

In 2006, several versions of the Military Commissions Act of 2006 (MCA) were introduced. The MCA created rules for the detainment, interrogation and trials of detainees in the War on Terror. It was eventually passed and was signed by President George W. Bush.

''Note: This page covers the final version of the Military Commissions Act of 2006 and its aftermath. It is a sub-article of the main Congresspedia article on War on Terror detainee legislation and has two sub-articles itself, Military Commissions Act of 2006 (evolution and passage) and Military Commissions Act of 2006 (opposition).''

Who the Military Commissions Act applies to
The MCA covers detainees defined as "alien unlawful enemy combatants".

Definition of "combatant" under international law
International humanitarian law (the laws of war) draws a distinction between “combatants,” defined as members of armed forces, and civilians. Civilians who are actively participating in hostilities can be treated as combatants. "Combatants" can be attacked and killed and are subject to capture under international law. 

"Unlawful enemy combatants" under the MCA
The MCA defines as "unlawful enemy combatants" as anyone who has "purposefully and materially" supported hostilities against the United States. This includes support that takes place off the battlefield. 

Additionally, persons who have been previously declared an "unlawful enemy combatant" by a Combatant Status Review Tribunal (CSRT) &mdash; military boards convened to allow detainees at Guantanamo Bay to challenge their combatant status &mdash; or "another competent tribunal" established by the president or defense secretary are also treated as combatants under the MCA. CSRTs are given no guidance under the MCA in making designations and in the past have used a more broad definition than the one in the MCA. In one case a CSRT designated a detainee as an enemy combatant for being an unknowing financier of a charitable arm of a terrorist organization. 

Human Rights Watch says these definitions "have essentially been invented by the administration and Congress. They have no basis in international law and undermine one of the most fundamental pillars of the Geneva Conventions &mdash; the distinction between combatants, who engage in hostilities and are subject to attack, and non-combatants."

Applicability to U.S. citizens
The MCA applies only to "alien unlawful enemy combatants" and as such does not appear to apply to U.S. citizens. However, non-citizen U.S. residents &mdash; including green card holders &mdash; can be designated as alien unlawful enemy combatants. 

Detention of combatants
The implications of the MCA on the detention &mdash; indefinite or not &mdash; of alien unlawful enemy combatants are unclear, as it does not explicitly address the subject. Human Rights Watch has speculated that "in detaining persons as enemy combatants, the administration may point to the definition of unlawful enemy combatant under the MCA to try to justify who may be so detained." 

Sens. John McCain (R-Ariz.), John Warner (R-Va.) and Lindsey Graham (R-S.C.) &mdash; three of the primary authors of the MCA &mdash; have argued that the bill “simply establishes the jurisdiction of military commissions” and does not, in any way, authorize the arrest and indefinite detention of those who fall within this broad category. 

MCA strips detainees of habeas corpus rights
The MCA strips all detainees designated as alien unlawful enemy combatants of the right to file for habeas corpus to challenge the legality of their detention before an independent court or to seek relief from mistreatment, including torture. Detainees do have the right to appeal decisions made by CSRTs or military commissions to civilian courts, but detainees who are not brought before them have no way of getting a court to hear their claims. This provision also applies to detainees that were not tried after they are released &mdash; detainees who are not brought to trial have no way of seeking redress or compensation for their imprisonment, even if they are eventually cleared of any wrongdoing. 

This provision echoes the Detainee Treatment Act of 2005, which barred detainees at Guantanamo Bay from bringing future habeas corpus challenges to their detention or the conditions of their detention. 

Trials of combatants
The MCA created a system of military commissions &mdash; criminal courts run by the U.S. armed services &mdash; to try non-citizen detainees designated as unlawful enemy combatants.

Military commissions have historically been used to dispense battlefield justice; to try captured combatants for violations of the laws of war. They have also been used to replace or substitute for civilian courts during martial law or under the occupation of enemy territory. Historically, it has been U.S. practice for military commissions to function as closely as possible to courts martial. 

Evidence rules
The commissions created by the MCA differ from those struck down by the Supreme Court under Hamdan v. Rumsfeld in that defendants cannot be convicted based on evidence that they cannot see or rebut. 

In addition to the rules detailed below, the MCA also allows the Secretary of Defense to establish further rules and procedures beyond what the MCA authorizes if he considers reliance on traditional courts martial rules and procedures to be "impracticable." The MCA also authorized the commissions to use relaxed rules on hearsay and evidence &mdash; compared to civilian courts &mdash; like the ones struck down in Hamdan v. Rumsfeld. Defendants can be convicted based on second-hand summaries of statements obtained through coercive interrogations without the opportunity to confront their accusers. 

Defendants have limited discovery rights
The MCA allows prosecutors to withhold classified sources and methods of interrogations from the defendant and his lawyers. 

Human rights groups, including Human Rights Watch, have criticized this, saying that "it will be extremely difficult for defendants to establish that evidence was obtained through torture or other coercive interrogation methods. Unless military commission judges are extremely vigilant, the prohibition on evidence obtained through torture could be become virtually meaningless." 

Hearsay evidence is allowed
The MCA allows military commissions to hear all hearsay evidence as long as it is deemed "reliable" and "probative." The burden of proving that the evidence is unreliable is placed on the defendant. 

Human rights groups, including Human Rights Watch, have said that this burden "will be almost impossible for a defendant with limited discoverty rights to meet. As a result, defendent could be convicted based on second- and third-hand summaries of key witness statements, without any chance to confront their accusers or challenge the accuracy of their statements in any meaningful way." 

Confessions obtained under cruel, inhuman or degrading treatment is allowed
The MCA bars evidence obtained through torture but expressely permit the use of testimony obtained through abusive interrogation techniques that were used prior to the passage of the Detainee Treatment Act of 2005 if they are found to be "reliable" and if their admission is found to be in "the interests of justice." 

Right to exculpatory evidence
Although defendants have a general right to the disclosure of any exculpatory evidence (evidence tending to show that they are not responsible for the crime of which they are accused), they are not allowed to see any classified evidence, even if it is exculpatory. Rather, they will be shown an “adequate substitute.” If the source of the exculpatory evidence is classified – and not revealed as part of the “adequate substitute” – the defendant could be denied access to important evidence that would establish his innocence. 

Crimes that can be tried by military commissions
The MCA authorized military commissions to try defendants for traditional war crimes as well as terrorism-related and other crimes that have traditionally been handled by civilian courts. It also authorizes the commissions to prosecute offenses that take place during armed conflicts, such as conspiracy, that are not considered war crimes. 

Human rights groups, including Human Rights Watch have expressed concern that "terrorism-related prosecutions of non-citizens will be shifted from federal courts to military commissions, where lax rules and procedures could deprive defendants of basic due process and fair trial rights." 

Penalties under the military commissions
Under the MCA, military commissions are able to sentence defendants to death or any period of imprisonment for offenses that result in the death of a person. 

Appeals of military commission verdicts
The commissions created by the MCA differ from those struck down by the Supreme Court under Hamdan v. Rumsfeld in that defendants can appeal all convictions to a civilian appellate court. This also differs from convictions under the Detainee Treatment Act of 2005, which defendants could only appeal if their convictions had a sentence of death or more than 10 years imprisonment. 

Changes to the War Crimes Act
The War Crimes Act of 1996 made certain crimes under international law prosecutable as domestic felonies if they are committed by or against a U.S. citizen. It was amended a year later to cover non-international as well as international conflicts to cover crimes such as those committed by warlords in Somalia. As amended in 1997, if criminalizes all violations of Common Article III of the Geneva Conventions as well as all grave breaches of the Geneva Conventions. This covers the cruel, humiliating or degrading treatment of detainees. CIA operatives, civilian officials and civilian contractors are vulnerable to war crimes prosecution under the Act, and members of the U.S. armed services can face prosecution under the Uniform Code of Military Justice. 

The MCA restricts the scope of the War Crimes Act by replacing the blanket criminalization of violations of Common Article III of the Geneva Conventions with a list of nine "grave breaches" of Common Article III. Included on the list are torture and "cruel and inhuman treatment," which is defined as conduct that causes serious mental or physical pain or suffering. The MCA defines serious physical pain or suffering as existing only when there is "extreme" pain or other extreme injuries: those with substantial risk of death, burn or serious physical disfigurement, or significant impairment of a body part, organ or mental faculty. 

It also restricts the scope of the War Crimes Act by declassifying degrading and humiliating treatment as war crimes. It also declassifies as a war crime the passing of sentences by a court that does not meet international fair trial standard. 

The MCA expands the scope of the War Crimes Act by specifying that the infliction of mental pain need not be prolonged to be unlawful, but need only be non-fleeting. However, this definition only applies to interrogations that take place after the passage of the MCA. Interrogations that took place prior to the passage of the act, the pain must be "prolonged" in order to be prosecutable under the War Crimes Act. This may shield interrogators and officials from prosecution who authorized or carried out interrogation techniques that caused non-prolonged but severe mental pain. 

Sen. John McCain (R-Ariz.) and John Warner (R-Va.), two of the primary Senate authors of the MCA, have stated that these definitions, specifically that of "cruel and inhuman treatment," criminalize the CIA's most abusive "enhanced" interrogation techniques. These techniques have reportedly included extended sleep deprivation, exposure to extreme cold and waterboarding, a which simulates a drowning sensation. The Bush administration has claimed that these techniques were not cruel and inhuman because they did not cause "prolonged" suffering. 

Prohibition against torture by U.S. officials remains
The MCA did not explicitly authorize the use of torture or abusive interrogation practices. The U.S. and its officials remain bound by international law and the treaties it has ratified &mdash; including the Geneva Conventions, the International Covenant on Civil and Political Rights and the Conventions Against Torture &mdash; not to engage in torture or practices that amount to cruel, inhuman and degrading treatment. The Detainee Treatment Act of 2005 also prohibits the use of cruel, inhuman or degrading treatment by all U.S. personnel operating worldwide. The MCA explicitly states that the list contained in the legislation of "grave breaches" of Common Article III of the Geneva Conventions does not represent the “full scope of U.S. obligations under that Article.”

The MCA does give the president the authority to interpret the "meaning and application” of the Geneva Conventions. As head of the executive branch, the president has the constitutional duty to interpret and implement U.S. treaty obligations. The MCA specifically states that the president's interpretation is a normal federal branch regulation, which like all regulations must be published in the Federal Register and is subject to judicial review.

However, the practical effect of the MCA was to make it difficult for detainees to challenge the president's interpretation of the Geneva Conventions by specifying the "grave breaches" of the Conventions that are the only ones prosecutable under the War Crimes Act and by stripping their habeas corpus rights to cite violations of the Conventions. The MCA also allows the admission of evidence that was obtained by interrogation techniques outlawed by the Conventions. 

Limits placed on Geneva Conventions appeals
The habeas corpus-stripping provisions of the MCA bar detainees from raising claims under the Geneva Conventions in lawsuits against the U.S. or U.S. personnel. Had the MCA been in place during the Hamdan v. Rumsfeld, Hamdan would have been prevented from including a central claim in his case: the military commissions violated the fair trial requirements of Article III of the Geneva Conventions. 

Further definition of rules by the Bush administration
The Bush administration is expected to publish detailed rules on the military commissions crated by the MCA in late 2006. 

Evolution and passage
The MCA was heavily debated on the floor of both the House and Senate before finally passing in late September 2006. For a detailed account of committee action, amendments, support, opposition, and final roll call vote information on the bill, see the main Congresspedia article.

Court challenges
The law was immediately met with court challenges, and some believe no terror suspects will be brought to trial under the new rules until courts rule on its constitutionality. According to many legal scholars, the most likely objection courts will have centers on the bill's stripping of habeas corpus rights from suspects. 

MCA violates international law?
Human Rights Watch has stated that the habeas corpus-stripping provisions of the MCA violate international law:

"'International law requires that persons subjected to human rights violations have a right to an effective remedy. The United States has ratified – and is therefore obligated to comply with – the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). These multinational treaties require that detainees have access to independent courts to challenge the legality of their detention and to raise and seek redress for torture and other abuse.'"

Implementation of Military Commissions Act
Human rights groups have expressed skepticism that any but a few dozen detainees held at Guantanamo Bay will ever be tried under the military commissions created by the MCA. They have said the Bush administration has no intention of trying the vast majority of the detainees and the MCA will instead allow them to be left in prolonged detention without being charged and stripped of their habeas corpus rights. 

Resources

 * Human Rights Watch, "Q and A: Military Commissions Act of 2006," October 2006.

External articles

 * Warren Richey, "New lawsuits challenge Congress's detainee act. Even before Bush has signed the legislation, defense lawyers are suing over its constitutionality," Christian Science Monitor, October 6, 2006.
 * Nat Hentoff, "Congress Bows To Bush. New Military Commissions Act gives president more power than ever," Village Voice, October 8, 2006.
 * Jeffrey Addicott, "The Military Commissions Act: Congress Commits to the War on Terror," Jurist, October 9, 2006.
 * Jonathan Hafetz, "No Blank Checks on Torture," The Nation, October 9, 2006.
 * Joanne Mariner, "The Military Commissions Act of 2006: A Short Primer. Part One of a Two-Part Series," FindLaw's Writ, October 9, 2006.
 * Jim Lobe, "Scrapping the Geneva Conventions," Global Politician, October 10, 2006.
 * John Amato, "Countdown Special Comment: Death of Habeas Corpus: 'Your words are lies, Sir'," Crooks and Liars, October 18, 2006. (WMV and QT formats).
 * "We can kill you and you may not object," Once Upon a Time.... Blog, October 18, 2006.
 * "Leahy aims at restoring habeas corpus," UPI (Washington Times), November 11, 2006.
 * Glenn Greenwald, "The Military Commissions Act in action," Unclaimed Territory Blogspot, November 14, 2006.
 * David G. Savage, "Federal judge issues split decision on new Military Commissions Act," Los Angeles Times (The Seattle Times), December 14, 2006.
 * Editorial: "The Democrats’ Pledge," New York Times, May 9, 2007.
 * Lewis Seiler,Dan Hamburg, Rule by fear or rule by law?, February 4, 2008, San Francisco Chronicle.