Military Commissions Act of 2006: Difference between revisions

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	If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.		If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.

	*Certain sections of the ] are deemed inapplicable - including some relating to a speedy trial , compulsory self-incrimination , and pre-trial investigation .		*Certain sections of the ] are deemed inapplicable - including some relating to a speedy trial , compulsory self-incrimination , and pre-trial investigation .

	*A civilian defense attorney may not be used unless they have clearance to view materials classified Secret.		*A civilian defense attorney may not be used unless they have clearance to view materials classified Secret.

Revision as of 21:15, 18 October 2006

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The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), enacting Chapter 47A of title 10 of the United States Code, is an Act of Congress (Senate Bill 3930) signed by President George W. Bush on October 17, 2006. Drafted in the wake of the exposure of a formerly secret CIA interrogation program, the Act provides for controversial practices relating to the American detention and treatment of prisoners.

Scope of the Act

Section 948a of title 10 of the United States Code, as added by the Act, defines an "unlawful enemy combatant" as:

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

This definition does not exclude American citizens. Prior to the enactment, the phrase "unlawful enemy combatant" was applied by the Bush administration to at least 3 American citizens. See John Walker Lindh, José Padilla, Yaser Hamdi

A "competent tribunal" is defined in the US Army field Manual, section 27-10, for the purpose of determining whether a person is or is not entitled to prisoner-of-war status and consists of a board of not less than three officers. It is also a term defined in Article five of the third Geneva Convention.

The criteria by which a Combatant Status Review Tribunal might determine someone to be an unlwaful enemy combatant are stated in the Detainee Act of 2005. The criteria by which "another competent tribunal" might do so are not specified.

Section 948c of 10 U.S.C., as added by the Act, states, "Any alien unlawful enemy combatant is subject to trial by military commission under this chapter" - with "alien" defined in Section 948a(3) as "a person who is not a citizen of the United States".

The Act does not specify any provisions for trying unlawful enemy combatants who may be American citizens. There is disagreement over whether the Act's provisions could be applied to them as well - since 10 U.S.C. sec. 948c does not exclude the possibility.

Provisions

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The Act changes pre-existing law to explicitly disallow the invocation of the Geneva Conventions when executing the writ of habeas corpus or in other civil actions . This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases.

If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.

Certain sections of the Uniform Code of Military Justice are deemed inapplicable - including some relating to a speedy trial , compulsory self-incrimination , and pre-trial investigation .

A civilian defense attorney may not be used unless they have clearance to view materials classified Secret.

Based on his findings, the judge may introduce hearsay evidence , evidence obtained without a search warrant , evidence obtained when the degree of coercion is disputed , or classified evidence not made available to the defense .

A finding of Guilty requires only a 2/3 majority

No defendant may invoke the Geneva Conventions in legal proceedings on their behalf.

The President determines “the meaning and application” of the Geneva Conventions banning the torture of prisoners.

The accused may be tried for the same offense a second time “with his consent” .

If the military commission returns a finding of Not Guilty, its convening authority is not required to take action on the findings.

Legislative History

The bill passed the Senate, 65-34, on September 28 2006.

The bill passed in the House, 250-170-12, on September 29 2006.

President George W. Bush signed the bill into law on October 17, 2006.

Passage through the Senate

Several amendments were proposed before final passage of the bill by the Senate; all were defeated. Among them were an amendment by Robert Byrd which would have added a sunset provision after five years; an amendment by Ted Kennedy which would have outlawed specific interrogation techniques including waterboarding, and an amendment by Arlen Specter (R-PA) and Patrick Leahy (D-VT) preserving habeas corpus. Specter's amendment was rejected by a vote of 51-48. Specter voted for the bill despite the defeat of his amendment. The bill was finally passed by the house on September 29 2006 and presented to the President for signing on October 10 2006.

Official statements

John Boehner, House Majority Leader:

Tomorrow I expect the House to consider and pass the bill approved by the Senate and send it to the President’s desk so we can begin to put terrorists such as alleged 9/11 mastermind Khalid Shaikh Mohammad on trial for their crimes. By preserving this critical program and arming the President with the tools he needs to keep America safe, our efforts to disrupt terrorist plots and save American lives with this vital program can continue. I would urge Democratic leaders to reconsider their ‘No’ votes on bringing dangerous terrorists to justice and put the interests of the American people ahead of their own.

George W. Bush, President of the United States:

Today, the Senate sent a strong signal to the terrorists that we will continue using every element of national power to pursue our enemies and to prevent attacks on America. The Military Commissions Act of 2006 will allow the continuation of a CIA program that has been one of America's most potent tools in fighting the War on Terror. Under this program, suspected terrorists have been detained and questioned about threats against our country. Information we have learned from the program has helped save lives at home and abroad. By authorizing the creation of military commissions, the Act will also allow us to prosecute suspected terrorists for war crimes.

Russell Feingold, United States Senator:

This bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.
That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.

.

Patrick Leahy, United States Senator:

Passing laws that remove the few checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin Laden and al Qaeda. Authorizing indefinite detention of anybody the Government designates -, without any proceeding and without any recourse -- is what our worst critics claim the United States would do, not what American values, traditions and our rule of law would have us do. This is not just a bad bill, this is a dangerous bill. .

Carl Levin, Ranking member of the Senate Armed Services Committee:

The bill approved by the Armed Services Committee this afternoon is, for the most part, a bipartisan, balanced and solid bill. It meets a critical test we established in our hearings this summer – will we be able to live with the procedures that we establish if the tables are turned and our own troops are subject to similar procedures? There is a second test for this bill – does it meet the standards set forth by the Supreme Court in the Hamdan case, in other words will it withstand judicial review? In this regard, I am concerned about a provision in the bill that would strip the courts of habeas corpus jurisdiction without, in many cases, providing detainees any alternative access to the courts to test the legality of their detention. Whatever military commission procedures we enact will be the model by which we as a nation are judged. We need a bill that is consistent with American values and the American system of justice. I will continue to work toward this objective as the bill proceeds to the Senate floor. .

Criticism

File:Death-of-habeas-corpus.jpg

MSNBC's Keith Olbermann announcing the "Death of Habeas Corpus" as a result of the Act

The Act has been denounced by critics who assert that its wording authorizes the permanent detention and torture (as defined by the Geneva Conventions) of anyone - including American citizens - based solely on the decision of the President. One has described it as "the legalization of the José Padilla treatment" - referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged. A legal brief filed on Padilla's behalf alleges that during this time he was subjected to sensory deprivation, sleep deprivation, and enforced stress positions.

Amnesty International said that the Act "contravenes human rights principles." An editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts."

American Civil Liberties Union Executive Director Anthony D. Romero said, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."

References

Military Commissions Act of 2006 (as passed by Congress), S.3930, September 22, 2006
Army Publishing Directorate, US Army Field Manual, Section 27, Military Justice November 16, 2005
Roll call vote, via www.senate.gov.
Roll call vote, via clerk.house.gov
thomas.loc.gov
Statement by House Majority Leader John Boehner, September 28, 2006, Washington, D.C.
Statement by President Bush, PRNewswire, Source: White House Press Office, September 28, 2006
Statement by Senator Russell Feingold, September 28, 2006 via feingold.senate.gov
Statement of Senator Patrick Leahy, On the Military Commissions Act, S. 3930, September 28, 2006
Statement by Senator Carl Levin, Armed Services Committee, Mark-up of Military Commissions Bill, September 14, 2006
"Twilight Struggle: Finally Standing Up as the Republic Crashes Down", Chris Floyd
"The legalization of torture and permanent detention", Glenn Greenwald
" The Bush administration's torture of U.S. citizen Jose Padilla"
"US Congress gives green light to human rights violations in the 'war on terror'" Amnesty International, September 29, 2006
"Rushing Off a Cliff", The New York Times, September 28, 2006
"Bush signs terror interrogation law", Associated Press

External links

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