The Military Commissions Act of 2006: A Short Primer
Part Two of a Two-Part Series

By JOANNE MARINER
Wednesday, Oct. 25, 2006

In the final run-up to the midterm elections, the Republicans are looking to national security to save them from a rout. Exploiting Americans' fears of terrorism, they accuse Democratic candidates of hindering counterterrorism efforts and exposing the public to the threat of further attacks.

Under the heading "America Weakly," the website of the Republican National Committee trumpets the fact that "162 House Democrats voted against authorizing military tribunals for dangerous terrorist suspects, including alleged 9/11 mastermind Khalid Sheikh Mohammad."

The legislation at issue is the Military Commissions Act of 2006 (MCA), a law that even some Republicans have criticized as unconstitutional. Besides authorizing substandard military trials for suspected terrorists, the new law immunizes CIA personnel for past abuses, bars detainees from asserting their right to habeas corpus, and attempts to render the Geneva Conventions unenforceable in court.

In the immediate wake of September 11, when the Patriot Act passed without opposition, a traumatized American public might have been apt to mistake abusive counterterrorism policies for effective ones. But five years later, objective indicators now show that the Bush Administration's response to terrorism has been, in myriad ways, counterproductive. The recently declassified National Intelligence Estimate confirms that U.S. policies have spawned deep-seated Muslim resentment, and that terrorists are using this resentment to draw recruits.

Rather than marking a new approach, the MCA provides congressional sanction for many of the Administration's most short-sighted and dangerous counterterrorism policies. While it does not explicitly legitimate torture or arbitrary detention, it places formidable legal obstacles in the way of detainees who would challenge such abuses. Below, following on a column posted two weeks ago, I discuss some of the worst elements of the new law.

CIA Abuses

The MCA was passed in the wake of the Supreme Court's landmark decision in Hamdan v. Rumsfeld, a ruling that called into question the legality of the Administration's secret CIA detention program. Hamdan made it clear that abusive interrogation techniques used by the CIA violated international law, and that CIA operatives could be held criminally liable for such abuses.

Reacting to Hamdan, the Bush Administration first pushed to redefine the scope of U.S. obligations under the Geneva Conventions, in particular Common Article 3, the provision at issue in Hamdan. After opposition from within the Republican Party to such an overt repudiation of universally-accepted international norms, the Administration took a different approach. While the MCA does not explicitly rewrite the Common Article 3, it opens the door to the provision's effective redefinition. It does so by specifying that the War Crimes Act, as amended, satisfies the U.S. obligation to criminalize grave breaches of Common Article 3, and that the president may issue authoritative interpretations of the remainder of the provision.

The law also nullifies the legal impact of the Conventions in domestic courts. Section 5 of the law provides that the Geneva Conventions and related treaties are unenforceable in court in civil cases involving the U.S. government or its agents. It states, specifically, that they may not be invoked "in any habeas corpus or any other civil action or proceeding . . . as a source of rights in any [U.S. or state] court." And another provision of the law bars persons deemed unlawful enemy combatants from invoking these treaties as a source of rights.

Notably, the legislation narrows the scope of the War Crimes Act, decriminalizing certain past acts. Previously, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for any Common Article 3 violation, including the cruel, humiliating or degrading treatment of detainees, could be prosecuted under the law.

The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of "grave breaches" of Common Article 3, which are specified and defined in the legislation. And the law is amended retroactively to November 26, 1997, meaning that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law.

Now, under the MCA, torture and cruel and inhuman treatment qualify as "grave breaches," but degrading or humiliating treatment does not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

A twist in the new legislation is that it includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the MCA's passage, and another that applies to future conduct. If committed after the passage of the MCA, cruel and inhuman treatment only requires a finding of serious and non-fleeting mental pain or suffering. But for abuses committed prior to the law's passage, the perpetrator can only be penalized if the pain or suffering is "prolonged."

This provision may immunize from prosecution CIA interrogators who have previously employed abusive interrogation techniques such as waterboarding and extended sleep deprivation -- techniques that cause time-limited but severe mental anguish.

Habeas-Stripping

The most-criticized provision of the legislation bars aliens held as enemy combatants from filing suit via the writ of habeas corpus to challenge the legality of their detention or to raise claims of torture and other mistreatment.

This provision covers all non-citizens, including longtime legal residents of the United States, and it applies even if they are held inside the United States. Moreover, the prohibition applies even after detainees have been released. As a result, detainees who have been tortured or otherwise mistreated are forever barred from going to a U.S. court to seek redress and to air what has happened to them.

The habeas-stripping provision raises a host of legal questions. The first is whether enemy combatants enjoy a constitutional right to habeas corpus (not just a statutory right to it), a question left unanswered by the Supreme Court's 2004 opinion in Rasul v. Bush. Note that the constitutional claim will probably be deemed stronger for Qatari student Ali Saleh al-Marri, held as an enemy combatant in the territorial United States, than for the Guantanamo detainees. It is likely to be deemed weakest of all for detainees held in Afghanistan and elsewhere abroad.

A second question with regard to Guantanamo detainees is whether the narrow federal court review of administrative proceeding held on Guantanamo allowed under a 2005 law should be considered an "adequate substitute" for habeas. And courts may also end up assessing whether the right to habeas can legitimately be suspended when a person has been deemed an enemy combatant.

Repeal

A post-election Congress should take a hard second look at the new law. While the courts are likely to strike down some of the MCA's worst provisions, a responsible Congress would repeal the law first. The goal of a fair, tough, and effective approach to counterterrorism requires it.


Joanne Mariner is a human rights attorney. Her previous columns on Guantanamo, the detainee cases, and U.S. counterterrorism policy are available in FindLaw's archive.

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