On September 28, 2006, the U.S. Senate debated the passage of the Military Commissions Act of 2006, which concerns the treatment and trial of individuals detained by the United States.  The bill passed the Senate with a vote of 65-34.   The House of Representatives had passed the bill the previous day.

A key question addressed in the Senate debate was whether the United States would abide by the humane treatment requirements of Common Article 3 of the Geneva Conventions.  The original military commissions legislation the President sent Congress for approval sought to downgrade the absolute prohibition against inhumane treatment of Common Article 3 and substitute in its place a standard under which conduct that would otherwise violate Common Article 3 would sometimes be allowed.  In the course of the Senate debate, the Senators most closely involved in the negotiations repeatedly stated their understanding that the United States is bound to adhere to Common Article 3, and that under that standard – as well as the absolute ban on cruel, inhuman or degrading treatment enacted as part of the Detainee Treatment Act last year –  techniques such as waterboarding, stress positions, induced hypothermia, mock executions, sleep deprivation, and sexual humiliation are squarely prohibited.  In addition, such conduct would constitute a “grave breach” of Common Article 3 would be subject to prosecution under amendments to the War Crimes Act.

During the debate, Senators considered an amendment, offered by Senator Edward Kennedy, to the Military Commissions Act.  The Kennedy Amendment would have required the Secretary of State to inform all other countries that the United States views the following as violations of Common Article 3 and would prosecute anyone who commits such act against U.S. personnel:  “forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.” Although the Kennedy Amendment did not pass, Senators made clear that they nonetheless consider each of these acts prosecutable violations of Common Article 3.

The following is a collection of excerpts from the floor statements made by Senators, three of whom – John McCain, John Warner and Lindsey Graham – were the primary drafters of the law.

Common Article 3 of the Geneva Conventions and the War Crimes Act

Senator McCain (S10414): “[T]his bill makes clear that the United States will fulfill all of its obligations under those Conventions. We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions.”

Senator Warner (p. S 10390): [Speaking of the Kennedy Amendment] “The types of conduct described in this [the Kennedy] amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill.”

Senator Levin (S10385): [Speaking of the Kennedy Amendment] “The types of conduct described in this [the Kennedy] amendment, in my opinion, are in the category of grave breaches of Common Article Three of the Geneva Convention. These are clearly prohibited by the bill.”

Senator Graham (S10252): “But if you want a CIA program that is not classified, you lost. I want the program to be classified. But I want it to run within the obligations of the Geneva Conventions, and we have accomplished that.”

Presidential Authority to Interpret Non-Grave Breaches

Senator McCain: (S 10274) “The bill authorizes the President to interpret the Geneva Conventions–a power he has already under the Constitution–as to what constitute nongrave breaches. These interpretations must be published in the Federal Register, and they will have same force as other administrative regulations, and thus may be trumped by law passed by Congress.”

(S10399) “Nothing in this bill gives the President the authority to modify the conventions or our obligations under those treaties. That understanding is at the core of this legislation.”

Senator McCain (S10414): “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.  The legislation would also guarantee that Congress and the judicial branch will retain their traditional roles of oversight and review with respect to the President’s interpretation of non-grave breaches of Common Article 3.”

Senator WARNER:”I concur with the Senator from Arizona.”

Senator Levin (S10244): “In particular, the bill before us does not reinterpret U.S. obligations for the treatment of detainees under Common Article 3 of the Geneva Conventions. It does not place a congressional stamp of approval on an executive branch reinterpretation of those obligations. All it does in this regard is to state the obvious: that the President is responsible for administering the laws and that this gives him the authority to adopt regulations interpreting the meaning and application of the Geneva Conventions in the same manner and to the same extent as he can issue such regulations interpreting other laws.”

Senator WARNER (S10399): “Nothing in this legislation authorizes the President to modify the requirements of the DTA, which were enshrined in a law passed last December.”

Senator McCAIN: “I agree entirely with Senator WARNER‘s comments.”

Senator LEVIN: “Would you agree that any interpretation issued by the President under this section [section 8(a)(3)] would only be valid if it is consistent with U.S. obligations under the Geneva Conventions and the Detainee Treatment Act? “

Senator McCAIN: “That is correct. “