Military Commissions Act of 2006 (evolution and passage)

This page details the process in the U.S. Congress whereby the Military Commissions Act of 2006 was debated, and ultimately passed. It follows committee action, amendments, support, opposition, and final roll call vote information on the bill.

''Note: This page covers the Military Commissions Act of 2006 (evolution and passage). It, along with Military Commissions Act of 2006 (opposition), is a sub-article of the Military Commissions Act of 2006 page, which is itself a sub-article of the main Congresspedia article on War on Terror detainee legislation.

House
On September 12, 2006, the House Committee on Armed Services approved a bill (H.R. 6054) which mirrored the wishes of the Bush Administration. The bill was sponsored by Rep. Duncan Hunter (R-Calif.), the committee's chairman, and passed 52-8. Specifically, it would:


 * Authorize the president to establish military commissions to try unlawful combatants for offenses such as terrorism, hijacking, and the murder of noncombatants.


 * Establish standards for the admission of evidence which recognize the military’s need to act quickly and during the course of emergencies; provide military judges the discretion to determine if admitted evidence is reliable and probative.


 * Allow for the introduction of evidence that is not presented to the accused if the military judge determines it is necessary to protect national security.


 * Clarify the specific offenses which the government interprets as violations of Article 3 of the Geneva Conventions banning “outrages upon personal dignity” and “humiliating and degrading treatment” (Any violations are felonies in the U.S. under the War Crimes Act of 1996).


 * Clarify the intent of the Detainee Treatment Act of 2005 in order to limit the right of detainees to challenge their detention (eliminating hundreds of pending detainee lawsuits).


 * Increase the protections for U.S. government personnel engaged in authorized interrogations from prosecutions.

Each of the provisions of the bill would be retroactively applied to the detention, treatment, or trial of all individuals detained since September 11, 2001.

On September 20, the House Judiciary Committee also held a vote on the bill. In a close vote, 20-19, the committee approved the measure. All 17 Democrats who took part in the vote opposed the bill (two were absent), along with GOP Reps. Jeff Flake (R-Ariz.) and Bob Inglis (R-S.C.). 

Senate
The Senate Armed Services Committee, however, did not support the president’s proposal. Rather, it voted in favor of an alternative one introduced by Sen. John Warner (R-Va.), the committee’s chairman, on September 14, 2006. The measure (S.3901), which passed by a vote of 15-9, also allows for the government to use special military commissions to try “enemy combatants.” It differs from both the administration’s wishes and the House measure (H.R. 6054) in two major ways. First, it would permit terror suspects to view all classified evidence against them. Second, it does not include a proposal that reinterprets Article 3 of the Geneva Convention prohibiting cruel and inhuman treatment of detainees. The following chart details both support and opposition in the committee for Warner's bill:

Graham, McCain, and Warner justified their stance against the Bush Administration by arguing that any changes to the U.S. interpretation of Article 3 could adversely affect the treatment received by captured U.S. service members in current and future wars.

Frist sides with President Bush
As McCain, Warner, and Graham negotiated with the Bush Administration over the bill, Senate Majority Leader Bill Frist (R-Tenn.) publicly expressed his disapproval of the Warner version. He argued that it would subject interrogators to “international courts and vague standards,” and jeopardize a program which is necessary in the global War on Terror. Frist then threatened to ignore the wishes of the committee and bring the administration’s bill to the floor for a vote. 

At the time, it appeared as though Warner had more than a majority of votes for his bill in the chamber. GOP Sens. Chuck Hagel (R-Neb.), Lincoln Chafee (R-R.I.) and Olympia Snowe (R-Maine) had expressed their support, giving the bill 52 votes if all Democrats voted in favor (which was expected). Frist also declared that he would consider filibustering the bill if passage seemed likely, for it would almost certainly lack the 60 votes necessary for a filibuster-proof majority. 

Former military officials speak out
On September 15, 2006, over two-dozen former military leaders wrote a letter to the Senate Armed Services Committee describing their objections to the bill. In addition, several other former officials publicly criticized the legislation. Their criticisms centered on a belief that the bill would put U.S. military personnel at risk in current and future military conflicts. Some also expressed concern that the bill would weaken the moral authority of the U.S. in the War on Terror.
 * See the main Congresspedia article on Military Commissions Act of 2006 (opposition).

Senate Judiciary Committee asks for review
On September 20, 2006, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and Ranking Member Patrick Leahy (D-Vt.) asked Frist to allow their panel to review the Warner bill. Both objected to a provision that would bar detainees from filing habeas corpus writs with federal courts. These writs require captors to tell the court why a detainee should not be released. Some Guantanamo Bay detainees have used the writs in the past to challenge the legitimacy and conditions of their detention. Specter argued that Congress “cannot act to delete the remedy of habeas corpus” and called the bill “unconstitutional.”

At a hearing on September 25, Bruce Fein, a senior Justice Department official in the Reagan administration, testified against the provision at a Senate hearing. He was joined by Kenneth W. Starr, a solicitor general under President George H.W. Bush, who said in a letter to Specter that he was concerned that the legislation "may go too far in limiting habeas corpus relief." 

Sen. John Cornyn (R-Tex.) defended the provision, saying alien enemy combatants are not "entitled to rights under the United States Constitution similar to those accorded to a defendant in a criminal lawsuit." 

Specter made it clear, however, that if an amendment to provide habeas corpus protection failed, he would not attempt to block the bill. 

On September 28, the bill was debated on the Senate floor (see below). Specter and Leahy introduced an amendment which would delete the provision in the bill allowing for the refusal of habeas corpus to detainees. The amendment failed by a 48-51 vote. During the debate, Specter argued that habeas corpus "is a constitutional requirement and it is fundamental that Congress not legislate contradiction to a constitutional interpretation of the Supreme Court." While the vote was largely along party lines, Specter was joined by GOP Sens. Lincoln Chafee (R-R.I), Gordon Smith (R-Ore.), and John E. Sununu (R-N.H.) in supporting the amendment. Sen. Ben Nelson (D-Neb.) was the only Democrat to oppose it. 

GOP senators reach agreement with Bush Administration
On September 21, the Bush Administration struck an agreement with Graham, McCain, and Warner. Under the deal, the senators agreed to define in the War Crimes Act several “grave breaches” of Article 3 of the Geneva Conventions. The executive branch would then be responsible for upholding the nations’ commitments to Geneva, leaving it up to the president to establish any violations for the handling of suspects that falls short of a “grave breach.” Among the several “grave breaches” listed in the agreement is torture, as well as other forms of assault and mental stress. There is no list, however, of specific interrogation techniques that would be prohibited. 

Originally, the administration had argued that compliance with the Detainee Treatment Act, which bans “cruel, inhuman or degrading treatment,” would by itself satisfy the obligations of the U.S. under Geneva. It had also hoped to officially reinterpret Article 3 of Geneva, something the agreement bars. 

The administration abandoned its request that the use of classified evidence be allowed without disclosing it to the suspect being tried. Under the agreement, the suspects may see any evidence that the jury sees (although the most sensitive details of the evidence may be withheld). In addition, no evidence obtained by techniques that violate the McCain-sponsored 2005 ban can be admitted. Hearsay evidence, and that which the defense shows is not reliable or probative, will also be inadmissible. 

Both sides also agreed to make the new standards on interrogation treatment retroactive to 1997, so that CIA and military personnel could not be prosecuted for past treatment. 

In the House, Rep. Duncan Hunter (R-Calif.), who sponsored the House bill in line with the administration’s original demands, said that he had some concerns about allowing classified evidence to be seen by suspects. Nonetheless, he stated, “I think we’re very close.” Sen. Carl Levin (D-Mich.), ranking member of the Senate Armed Services Committee, took issue with a separate provision in the agreement which would deny detainees a right to challenge their captivity in court. Majority Leader Bill Frist (R-Tenn.) was pleased with the agreement and announced that he would soon bring it to the floor for a vote.  

Compromise language changed
Over the weekend of September 23-24, 2006, GOP House members reached an agreement with the administration to alter the compromise in a way which would allow the U.S. to more easily designate civilians as “unlawful enemy combatants.” Specifically, the bill would permit the indefinite detention of anyone who, “has engaged in hostilities or who has purposefully and materially supported hostilities against the United States” or its military allies. The definition would apply to foreigners living inside or outside the United States and does not exempt the designation of U.S. citizens as unlawful combatants. It was a broader definition than that agreed to between the administration and GOP senators the previous week. That bill labeled enemy combatants as those, “engaged in hostilities against the United States.”

In addition, the revised compromise no longer allowed detainees to "examine and respond to" all evidence against them, but rather only "respond to" it.  

According to Suzanne Spaulding, a former assistant counsel at the CIA, the bill’s definition, “would give the administration a stronger basis on which to argue that Congress has recognized that the battlefield is wherever the terrorist is, and they can seize people far from the area of combat, label them as unlawful enemy combatants and detain them indefinitely.”

House passage
On September 27, 2006, the House passed the Military Commissions Act (H.R. 6166) by a vote of 253-168, which reflects the revised compromise made between the Senate Republicans and President Bush. On the floor, House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees. House Judiciary Chairman James Sensenbrenner (R-Wis.) justified the action by arguing that suspects have enough rights without habeas corpus. In a passionate speech, he stated, “Let's bring justice before the eyes of the children and widows of Sept. 11.” He was joined in his support by House Majority Leader John Boehner (R-Ohio), who criticized Democrats for largely opposing the measure, stating, “It is outrageous that House Democrats, at the urging of their leaders, continue to oppose giving President Bush the tools he needs to protect our country.”

Democrats, however, found the bill, which gives both the president and interrogators broader authority in its treatment and prosecution of detainees, to be a dangerous step. House Minority Whip Steny H. Hoyer (D-Md.) said, “Defending America requires us to marshal the full range of our power: diplomatic and military, economic and moral. And when our moral standing is eroded, our international credibility is diminished as well.” Rep. Jerrold Nadler (D-N.Y.) offered a similar view, arguing that, “This is how a nation loses its moral compass, its identity, its values and, eventually, its freedom. . . . We rebelled against King George III for less restrictions on liberty than this.”

Senate passage
On September 28, 2006, the Senate passed their version of the detainee bill (S.3930) by a vote of 65-34. It was supported by each GOP senator with the exception of Sen. Lincoln Chafee (R-R.I.). Twelve Democrats also voted in favor of the legislation. Following the vote, several senators offered their views on the legislation:


 * Sen. Russ Feingold (D-Wis.): "We will look back on this day as a stain on our nation’s history."
 * Sen. Patrick Leahy (D-Vt.): “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?”
 * Sen. Jeff Sessions (R-Ala.): "Unlawful combatants, the kind we’re dealing with today, have never been given the full protections of the Geneva Conventions.”
 * Sen. Gordon Smith (D-Ore.): "Providing detainees with the right to evaluate the legality of their detention I do not believe will cost U.S. lives...Permanent detention of foreigners, without reason, damages our moral integrity."
 * Sen. Arlen Specter (R-Pa.): (on why he voted in favor despite his disapproval of the bill's failure to provide habeas corpus prtoection) "The court will clean it up."

Bush signs bill into law
On October 17, 2006, President Bush signed the Military Commissions Act of 2006 into law. At a ceremony for the signing, he stated, "It is a rare occasion when a president can sign a bill he knows will save American lives.

Articles

 * 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.
 * 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.
 * "Olbermann: 'Why does habeas corpus hate America'," Crooks and Liars, October 10, 2006. (WMV and QT formats). re Keith Olbermann
 * 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.