Questions and Answers About the Military
Commissions Act of 2006

On October 17, President Bush signed into law the Military Commissions Act of 2006 (MCA). The MCA is the most sweeping legislation since September 11, 2001 on the powers of the President to detain, interrogate, and try people the administration deems to be “unlawful enemy combatants.”  While Congress rejected White House efforts to downgrade the standard of basic humane treatment that all detainees are entitled to under the laws of war, the MCA includes a number of provisions that seriously undermine basic human rights.  Among other things, the MCA makes it harder to prosecute those who commit war crimes – both U.S. officials and enemies of the United States who abuse U.S. personnel – under the federal War Crimes Act.  It curtails the role of U.S. courts in reviewing the detention and treatment of people captured by the U.S. Government.  It authorizes special military trials with fewer fairness protections for so-called “unlawful enemy combatants” than provided by America’s time-tested system of military justice.  And it seeks to give the President unreviewable authority to label as “unlawful enemy combatants” a broad range of people, including U.S. citizens.

This paper answers some key questions about the MCA.

Background

The MCA was enacted in response to the Supreme Court’s June 29, 2006 decision in Hamdan v. Rumsfeld.  That decision struck down special military commissions established by President Bush in 2001 to try people suspected of war crimes.  The Court said that the commissions needed to be authorized by Congress; the President could not simply establish a trial system on his own.  The Court also said that the commissions violated the fair trial standards of Common Article 3 of the Geneva Conventions, a set of four treaties signed by the United States that govern the treatment of anyone captured in the course of armed conflict.  (Common Article 3 is called so because it is common to all four Geneva Conventions.)  The Supreme Court also made clear that Common Article 3 – which provides both fair trial protections and basic standards of humane treatment – applies to suspected members of al Qaeda in U.S. custody.

In response to the Court’s decision, the administration asked Congress to pass legislation that, among other things, would re-define Common Article 3, especially its requirement that all detainees captured during armed conflict be treated humanely.  The President wanted Congress to replace Common Article 3’s absolute prohibition on inhumane treatment with a flexible standard. He sought the authority to determine, on a case-by-case basis, whether particular treatment would be “cruel, inhuman or degrading” in violation of the treaty.  This proposal was squarely rejected by Congress. 

Despite this, the MCA contains a number of provisions that raise serious concerns about compliance with the Geneva Conventions and with fundamental due process principles.  Among the most troubling aspects of the MCA are provisions that claim to:

• Grant unprecedented and unchecked authority to the Executive Branch to label people “unlawful enemy combatants,” including U.S. citizens;

• Deny independent judicial review of detentions of longtime U.S. residents and non-citizens (the MCA purports to strip detainees deemed to be unlawful enemy combatants of the most common means for an individual to challenge the legality of detention – the right to seek a writ of habeas corpus);

• Limit the sources of law to which the courts may look in determining whether an individual’s rights are being violated;

• Narrow the scope of the War Crimes Act and eliminate accountability for past violations of the law;

• Permit evidence that was obtained through abuse or coercion to be used in military commission proceedings;

• Permit the introduction of classified evidence even if the defendant has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence;

• Prevent the defendant from getting access to evidence that might prove his innocence;

• Give the Secretary of Defense authority to bypass time-tested military justice standards for fair trials.

Frequently Asked Questions About the New Law

Treatment of Detainees, Geneva Conventions,
and the War Crimes Act

Does the bill authorize torture or other forms of cruel treatment?

No, and this is vitally important.  Congress rejected the administration’s proposal to redefine Common Article 3 of the Geneva Conventions so as to downgrade the standard of humane treatment.  During congressional debates, the drafters of the MCA – Senators Warner, Graham and McCain – emphasized that Common Article 3’s broad prohibitions against inhumane treatment remain binding on all U.S. personnel, military and the CIA.
 
The MCA also makes it clear that any U.S. official engaging in torture or conduct that results in “serious mental pain or suffering” can be charged with a war crime under the War Crimes Act.   Interrogation techniques such as prolonged isolation, use of extreme temperatures (for example, inducing hypothermia), prolonged sensory deprivation or sleep deprivation, sexual humiliation, stress positions, waterboarding, mock executions, deprivation of medical treatment, and threats to family and friends are among the techniques that result in “serious mental pain or suffering” and are therefore war crimes.

Does the bill give the President authority to redefine the humane treatment requirements of Common Article 3 of the Geneva Conventions?

Nothing in the MCA would permit the President to change the meaning and requirements of the Geneva Conventions.  Those requirements remain intact, all U.S. personnel must comply with them, and the courts remain the final arbiter of their meaning. 

The MCA does recognize that the President has authority to interpret treaties as he carries them out.  But anytime the President issues interpretations of Common Article 3, they must be published in the Federal Register and are subject to congressional and judicial oversight.  The new law emphasizes that it is not changing the constitutional role of the courts and Congress.  The courts, as always, have the duty to say what the law means. 

The MCA claims to strip away a key check on Executive Branch compliance with U.S. and international law:  the ability of the courts to hear challenges to detention via the writ of habeas corpus and civil lawsuits.  The MCA explicitly seeks to prevent courts from hearing claims of violations of the Geneva Conventions.

Does the bill provide immunity for past war crimes?

Prior to the MCA, the federal War Crimes Act stated, among other things, that all violations of Common Article 3 of the Geneva Conventions were war crimes.  The MCA amends the War Crimes Act so that only “grave breaches” of Common Article 3 (as defined by the MCA) now constitute war crimes.  The “grave breaches” language sets a higher threshold for what constitutes a war crime.  For example, Common Article 3 prohibits all cruel or inhuman treatment, including humiliating and degrading treatment and outrages upon personal dignity.  But under the MCA, only the most severe cruel or inhuman treatment – that which amounts to “severe or serious physical or mental pain or suffering” – constitutes a war crime.  In addition, prior to the MCA amendments, it was a war crime to deprive a detainee who was covered by Common Article 3 of the Geneva Conventions, of the rights of fair trial.  Under the MCA amendments, subjecting a detainee to an unfair trial is no longer a war crime under the War Crimes act.

The MCA amendments to the War Crimes Act are retroactive to November 26, 1997 (when the War Crimes Act came into effect).  Thus, those who engaged in conduct that would have violated the broader scope of prohibitions prior to the MCA are now immune from prosecution for such conduct, at least as war crimes (there are many other criminal and military laws that prohibit cruel treatment).   

Secret Detentions

Does the Military Commissions Act authorize the CIA secret detention program?

No.  Detaining people in secret locations is still against the law.  U.S. law, international human rights law, and international humanitarian law (the law of war) require the United States to hold all detainees in acknowledged places of detention, on official registers, and to provide the International Committee of the Red Cross and/or detainees’ families information on the fate of detainees.

Can anyone designated an “unlawful enemy combatant” be detained indefinitely, even a U.S. citizen?

In describing who may be tried by military commissions, the MCA defines “unlawful enemy combatant” very broadly, so that it could encompass:

• U.S. citizens picked up in the United States,



•  any other person picked up anywhere in the world,



• people who are far from any battlefield,



• people who have not have engaged directly in any hostilities against the United States,



• people who may not even have committed terrorist acts,



• people whose activities have no connection to war or armed conflict,



• anyone determined to be one by tribunals established by the President or the Secretary of Defense. 

The MCA does not explicitly authorize indefinite detention.  In fact, the principal drafters of the MCA, Senators Graham, Warner and McCain, specifically noted that the Act’s definition of “unlawful enemy combatant” applies only for purposes of trials by the military commissions.  However, there is nothing in the Act that would require “unlawful enemy combatants” to be brought to trial.  Without such a requirement, the new law leaves open the possibility that people may continue to be held indefinitely. 

The definition of “unlawful enemy combatant” also raises serious concerns because it blurs the most fundamental distinction the laws of war make between combatants and non-combatants, and between circumstances where ordinary criminal laws protect individual rights, and where the special laws of war apply.  The administration has argued that the entire world is a battlefield in “the global war against terrorism,” which it argues is a new kind of war, where few rules apply.  Congressional approval of this broad “enemy combatant” definition reinforces that view.    

Access to Courts

Can people detained as unlawful enemy combatants challenge their detention in court?

The MCA claims to strip non-citizens – including longtime permanent residents of the U.S. – of the right to challenge their detention as “unlawful enemy combatants” in court.  The MCA also claims to limit judicial review of the decisions of military commissions. Under the MCA, courts:

• may only be able to review legal findings and conclusions of military commissions, and not factual ones (so, for example, a court would not be able to review a detainee’s appeal based on actual innocence),

• may only be able to review whether the final decision of military commissions complies with the procedures laid out in the MCA (not, for example, whether the commissions comply with the U.S. Constitution),

• may only be able to review claims under the Constitution and other laws “to the extent applicable” (the Bush administration has argued that the Constitution and other U.S. and international laws do not apply to individuals held outside the United States),

• may be barred from reviewing violations of the Geneva Conventions, and

• may be barred from using treaties the U.S. signed and ratified as a basis for a decision interpreting the War Crimes Act.
  
  

Military Commission Trials

Does the bill permit military commissions to convict a person based on coerced testimony?

Yes.  In our system of justice, coerced testimony has been understood for centuries to be unreliable by its nature.  But the MCA allows the military commissions to consider evidence obtained through coercion or even cruel, inhuman and degrading treatment if it was obtained before December 31, 2005 and the judge finds it reliable.  Evidence obtained through coercion after December 31, 2005 can be admitted as long as the coercion used to obtain it does not violate the Constitution. By allowing coerced testimony in under certain circumstances, the new law suggests that such evidence can ever be reliable.  That contradicts more than 200 years of American law that absolutely excludes coerced evidence.  Use of coerced testimony taints the trial and the whole justice system. 

Does the new law guarantee fair trials?

The MCA authorizes trials that violate a number of U.S. and international fair trial standards, including Common Article 3 and the Due Process Clause of the U.S. Constitution. Among the most troubling provisions are those that would:

• permit evidence obtained through coercion;



• exclude the defendant from the proceedings in certain circumstances,



• prevent the defense from learning how evidence against the defendant was obtained whenever the government labels the evidence classified;



• admit hearsay evidence while imposing the burden on the defense to prove that the evidence is not reliable;



• do not provide the defense with right to appeal faulty rulings before the end of the whole trial,



• limit the defendant’s access to evidence that could show innocence,



• limit the sources of law to which courts may look,



• seek  to exclude the Geneva Conventions as a source of rights,



• aim to make the Geneva Conventions non-enforceable in U.S. courts,



• include offenses that are not war crimes,



• seek to create retroactive criminal responsibility for acts that were not crimes at the time they were committed, and



• withhold full and effective rights of appeal