Military Commissions Act 2006
- Unchecked Powers?
by Anup Shah
www.zmag.org, October 2, 2006
US Senate votes to rollback habeas corpus,
use torture, and provide immunity for US officials from torture
September 29, 2006, the US Senate agreed
to the Military Commissions Act of 2006 which gives US President
George Bush unprecedented power to detain and try people as part
of their "War on Terror." President Bush is then expected
to sign the Act into law. Broadly, the new Act does 3 things:
* Strips the right of detainees to habeas
corpus (the traditional right of detainees to challenge their
* Gives the US President the power to detain indefinitely anyone-US
or foreign nationals, from within the US, and from abroad-it deems
to have provided material support to anti-US hostilities, and
even use secret and coerced evidence (i.e. through use of torture)
to try detainees who will be held in secret US military prisons;
* Gives US officials immunity from prosecution for torturing detainees
that were captured before the end of 2005 by US military and CIA.
The bill was passed by the Senate sixty
five votes in favor, thirty four against. Twelve Democrats joined
the Republican majority. The House passed virtually the same legislation
a few days earlier on Wednesday, 27 September.
The New York Times noted the far-reaching
powers the Act will give the president, and other top officials
observing that, "Rather than reining in the formidable presidential
powers asserted since Sept. 11, 2001, the law gives some of those
powers a solid statutory foundation. In effect it allows the president
to identify enemies, imprison them indefinitely and interrogate
them-albeit with a ban on the harshest treatment-beyond the reach
of the full court reviews traditionally afforded criminal defendants
and ordinary prisoners." Furthermore, not only does the Act
allow the president to determine the meaning and application of
the Geneva Conventions, "it also strips the courts of jurisdiction
to hear challenges to his interpretation."
This can have far-reaching consequences.
For example, Amnesty International says the legislation will lead
to violations of international law and standards and accuses the
US Congress of "failing human rights" by voting for
this Act and says it "deeply regrets that Congress failed
to resist this executive pressure and instead has given a green
light for violations of the USA's international obligations."
The international human rights organization
expands on the above 3 points and is summarized here:
Striping habeas corpus and other fundamental
On this issue, Amnesty international
notes that the Act will:
* Strip the US courts of jurisdiction
to hear or consider habeas corpus appeals challenging the lawfulness
or conditions of detention of anyone held in US custody as an
* Prohibit any person from invoking the Geneva Conventions or
their protocols as a source of rights in any action in any US
* Permit civilians captured far from any battlefield to be tried
by military commission rather than civilian courts, contradicting
international standards and case law.
* Limit the right of charged detainees to be represented by counsel
of their choosing.
Power to detain indefinitely and torture
On this issue, Amnesty international notes
that the Act will:
* Fail to provide any guarantee that trials
will be conducted within a reasonable time.
* Permit the executive to convene military commissions to try
"alien unlawful enemy combatants", as determined by
the executive under a dangerously broad definition, in trials
that would provide foreign nationals so labeled with a lower standard
of justice than US citizens accused of the same crimes. This would
violate the prohibition on the discriminatory application of fair
* Establish military commissions whose impartiality, independence
and competence would be in doubt, due to the overarching role
that the executive, primarily the Secretary of Defense, would
play in procedures and in appointments of military judges and
* Permit, in violation of international law, the use of evidence
extracted under cruel, inhuman or degrading treatment or punishment,
or as a result of "outrages upon personal dignity, particularly
humiliating or degrading treatment", as defined under international
* Permit the use of classified evidence against a defendant, without
the defendant necessarily being able effectively to challenge
the "sources, methods or activities" by which the government
acquired the evidence.
* Give the military commissions the power to hand down death sentences,
in contravention of international standards. The clemency authority
would be President Bush [who] has led a pattern of official public
commentary on the presumed guilt of the detainees, and has overseen
a system that has systematically denied the rights of detainees.
* Permit the executive to determine who is an "enemy combatant"
under any "competent tribunal" established by the executive.
Giving US officials immunity from prosecution
On this issue, Amnesty international notes
that the Act will:
* Narrow the scope of the War Crimes Act
by not expressly criminalizing acts that constitute "outrages
upon personal dignity, particularly humiliating and degrading
treatment" banned under Article 3 common to the four Geneva
* Prohibit the US courts from using "foreign or international
law" to inform their decisions in relation to the War Crimes
Act. The President has the authority to "interpret the meaning
and application of the Geneva Conventions."
* Endorse the administration's "war paradigm"-under
which the USA has selectively applied the laws of war and rejected
international human rights law.
Constitution, Rights Groups, and Others
Amnesty International has also noted that
the US has already been using techniques that are only now being
passed into law. In effect, the US has already been violating
The past five years have seen the USA
engage in systematic violations of international law, with a distressing
impact on thousands of detainees and their families. Human rights
violations have included:
* Secret detention
* Enforced disappearance
* Torture and other cruel, inhuman or degrading treatment
* Outrages upon personal dignity, including humiliating treatment
* Denial and restriction of habeas corpus
* Indefinite detention without charge
* Prolonged incommunicado detention
* Arbitrary detention
* Unfair trial procedures
Yet at the same time, US officials have continued to characterize
the USA as a "nation of laws" and one that in the "war
on terror" is committed to what it calls the "non-negotiable
demands of human dignity," including the "rule of law."
During the debates on the Military Commissions
Act, members of Congress expressed their support for the program,
despite the fact that it violates international law. Thousands
of detainees remain in indefinite detention without charge or
trial in US custody in Iraq, Afghanistan and Guantánamo.
In passing the Military Commissions Act, Congress has failed these
detainees and their families.
Those defending human rights should be
prepared for a long struggle.
- USA Military Commissions Act of 2006-Turning
bad policy into bad law, Amnesty International, September 29,
2006, AI Index: AMR 51/154/2006
Furthermore, Amnesty International continues
its criticisms noting "how vulnerable the law is to elastic
interpretation, manipulation or selective application by the state.
And that, for better or worse, a government can use policy to
drive the law rather than vice versa. In the USA's case, a long-held
resistance to applying international law to its own conduct compounds
Legal groups, such as the Center for Constitutional
Rights, are already preparing to challenge the constitutionality
of the law in court, as Democracy Now! noted in an interview with
the Center's president, Michael Ratner, and with Senator Patrick
Leahy, who was very critical of the bill's implication. That interview's
transcript is cited here at length for it summarizes some of the
fears and ramifications further:
if you could explain exactly what this bill that the Senate has
Senator Patrick Leahy:
First off, it's a terrible bill. It removes as many checks and
balances as possible so that any president can basically set the
law, determine what laws they'll follow and what laws they'll
break and not have anybody be able to question them on it.
Habeas corpus was first brought in the
Magna Carta in the 1200s. It's been a tenet of our rights as Americans.
And what they're saying is that if you're an alien, even if you're
in the United States legally, a legal alien, may have been here
ten years, fifteen years, twenty years legally, if a determination
is made by anybody in the executive that you may be a threat,
they can hold you indefinitely, they could put you in Guantanamo,
not bring any charges, not allow you to have a lawyer, not allow
you to ever question what they've done, even in cases, as they
now acknowledge, where they have large numbers of people in Guantanamo
who are there by mistake, that they put you-say you're a college
professor who has written on Islam or for whatever reason, and
they lock you up. You're not even allowed to question it. You're
not allowed to have a lawyer, not allowed to say, "Wait a
minute, you've got the wrong person. Or you've got-the one you're
looking for, their name is spelled similar to mine, but it's not
me." It makes no difference. You have no recourse whatsoever.
This goes so much against everything we've ever done. Now, we've
had some on the other side say, "Well, they're trying to
give rights to terrorists." No, we're just saying that the
United States will follow the rules it has before and will protect
rights of people. We're not giving any new rights. We're just
saying that if, for example, if you picked up the wrong person,
you at least have a chance to get somebody independent to make
And under the Constitution, that habeas can be suspended if there
is an invasion, if there is an insurrection. We have neither case
here. Even the most conservative Republican legal thinkers have
said this is not a case to suspend habeas corpus.
The fact is this [Act] allows the Bush
administration to act totally arbitrarily with no court or anybody
else to raise any questions about it. It allows them to cover
up any mistakes they make. And this goes beyond just marking everything
"secret," as they do now. Every mistake they make, they
just mark it "secret." But this is even worse. This
means somebody could be locked up for five years, ten years, fifteen
years, twenty years. They have the wrong person, and they have
no rights to be able to say, "Hey guys, you've got the wrong
person." It goes against everything that we've done as Americans.
You know, when things like this were done
during the Cold War in some of the Iron Curtain countries, I remember
all the speeches on the Senate floor, Democrats and Republicans
alike saying, "How horrible this is! Thank God we don't do
things like this in America." I wish they'd go back and listen
to some of their speeches at that time.
Michael Ratner of the Center for Constitutional
Rights, your response about this groundbreaking legislation?
Well, I think Senator Leahy really got
it right. I mean, what this bill authorizes is really the authority
of an authoritarian despot to the president. I mean, what it gives
him is the power, as the senator said, to detain any person anywhere
in the world, citizen or non-citizen, whether living in the United
States or anywhere else. I mean, what kind of authority is that?
No checks and balances. Nothing. Now, if you're a citizen, you
still get your right of habeas corpus. If you're a non-citizen,
as the senator pointed out, you're completely finished. Picked
up, legal permanent resident in the United States, detained forever,
no writ of habeas corpus.
- Democracy Now! "A Total Rollback Of Everything This Country
Has Stood For" Sen. Patrick Leahy Blasts Congressional Approval,
Democracy Now!, September 29, 2006 [citing rushed transcript]
Act Erodes Democratic Accountability of
Supporters of the bill have defended it
saying that this is not as totalitarian of Bush as some have feared,
because it is the Senate and the House that have voted in this
bill, demonstrating the democratic nature of this process.
However, one paradox of democracy is that
people can vote in policies that are counter to democratic ideals
or even non-democratic rulers (which a lot of commentators have
noted has happened in Palestine as the people voted in Hamas).
Also, as Sentaor Leahey continues in the
aforementioned interview, a "rubberstamp congress automatically
has given the President anything he wants, because nobody's asked
questions. The Republicans control both the House and the Senate.
They will not call hearings."
Leahey notes there are all sorts of questions
that the Bush Administration should be asked and held account
for, ranging from corruption to torture and more. For example,
he notes, the Republicans "won't try to find out how did
Halliburton walk off with billions of dollars in cost overruns
in Iraq. Why did the Bush administration refuse to send the body
armor our troops needed in Iraq? Why did they send inferior material?
And, of course, the two questions that the Congress would not
ask, because the Republicans won't allow it, is, why did 9/11
happen on George Bush's watch when he had clear warnings that
it was going to happen? Why did they allow it to happen? And secondly,
when they had Osama bin Laden cornered, why didn't they get him?
Had there been an independent congress, one that could ask questions,
these questions would have been asked years ago. We'd be much
better off. We would have had the answers to that. I think with
those answers, we would not have the fiasco we have in Iraq today,
we would have caught Osama bin Laden, Afghanistan would be a more
stable place, and the world would be safer."
Rosa Brooks, writing in the Los Angeles
Times adds that "It's far too late for [Bush] to leave a
legacy that won't be a source of shame to future generations.
So he's going for second best: a congressionally delivered get-out-of-jail-free
Defenders of the Act may think Senator
Leahey might be being optimistic on his view that we'd be much
better off without this Act, for we can never know, but certainly
the questions he has raised, and many others, have been virtually
ignored by not just the elected representatives, but most of the
With just this bill, for example, as Media
Watchdog, Fairness and Accuracy In Reporting (FAIR) reveals in
their CounterSpin radio show, the media reporting on the passing
of this bill and its implications have been mostly ignored until
very recently, instead focusing on a more sensational and shallow
angle of which Republicans favor it and which do not.
Michael Ratner, also taking part in the
CounterSpin show opined that the media coverage was just "terrible."
This is unfortunately not surprising, as media coverage of both
domestic and global issues by the US media has been poor for many,
many years, as discussed further in this site's section on the
Aziz Huq, writing in the Huffington Post
notes that the 2006 Military Commissions Act (MCA) "comprehensively
assaults two ideas" that are the "basic tools of accountability"in
a democratic government:
The idea of checking executive power by
And the idea of a separate branch of government
ensuring those limits to executive power are respected.
The Act's use of vague, or poorly-defined, terms also allows almost
arbitrary, unaccountable detention and torture. For example for
detention, Huq gives the following examples of vague terms that
sound reasonable at first but can mean many different things to
* When you "purposefully and materially
* When you are designated an enemy combatant by the Combatant
Status Review Tribunal or "another competent tribunal".
* When it comes to torture, vague terms and definitions mean torture
can occur without having to call it torture.
Huq is quoted at length here:
Here are three examples of the duplicitous
ambiguity of the MCA when it comes to torture and abuse.
First, "cruel and inhuman" treatment
is defined as acts that cause "severe or serious" pain.
We know "severe" is worse than "serious" because
"severe" is used to define torture. But then "serious
pain" is defined as "bodily injury" that causes
"extreme physical pain." So "serious" pain
is only "extreme" pain? Isn't extreme worse than serious?
It would seem so-but the MCA is deliberately confusing and circular.
And why the reference to bodily injury?
Does that mean that hypothermia and long-time standing and those
other wretched "enhanced" techniques more fitting for
Stalin's gulags than American facilities are not criminal? Well,
yes, I reckon it does.
Second, "serious mental pain"
is defined in terms of "non-transitory" harms. Thus,
if a CIA agent threatens to kill a detainee, or to rape his spouse
and his children-all long-recognized as forms of torture-that's
not torture; it's not even the lesser "cruel and inhuman"
Finally, the torture statute itself. Almost
unnoticed, the Bush Administration has gutted the no-torture rule.
It has added the requirement that a person "specifically"
intend to cause the pain that amounts to torture. This technical
change has tremendous implications. It means that any government
agent who says his goal was to get information, and not to cause
pain, hasn't tortured no matter how bad the things he does. If
the person water-boards or knee-caps a person, or buries them
alive, if it's to get information-well, that's just dandy.
- Aziz Huq, Sayonara to Checks and Balances?,
Huffington Post (reposted by AlterNet.org), September 30, 2006
And in terms of how the idea of a separate
branch of government to check the excesses of executive power
is being undermined, Huq explains:
It's not just the substantive rules that
have been assailed: It's also the mechanisms to ensure the rules
are followed. Under the MCA, there is no accountability for torture.
The MCA cuts off courts' power to hear claims of torture by aliens
held as "unlawful enemy combatants." And it vests the
President with power to interpret the relevant laws of war. So
if he says that "cold cell" and sexual abuse are not
"cruel and inhumane," that's the end of the matter.
- Aziz Huq, Sayonara to Checks and Balances?,
Huffington Post (reposted by AlterNet.org), September 30, 2006
Bush Says He Doesn't Do Torture-Depends
On Your Definition
The United States declares its strong
solidarity with torture victims across the world. Torture anywhere
is an affront to human dignity everywhere. We are committed to
building a world where human rights are respected and protected
by the rule of law. Freedom from torture is an inalienable human
- Statement by President, George W. Bush,
June 26, 2003
President Bush has repeatedly stressed
that the US doesn't do torture and that he does not condone or
authorize it. Instead, he says they use lawful 'alternative procedures'
of interrogation, as Rosa Brooks noted in an opinion piece in
the Los Angeles Times. However, as she asks, if everything is
done lawfully, why is the White House suddenly so desperate to
get a deal with Congress to 'clarify' Common Article 3 of the
Geneva Convention and amend the War Crimes Act, which criminalizes
violations of the article? She continues:
Behind the antiseptic talk of alternatives,
dietary modification and stress positions lie methods designed
to break human bodies and human minds. Legally and morally, many
of the alternative interrogation methods championed by our president
are torture, plain and simple. And there is no doubt at all that
they're cruel, inhuman and degrading.
That's what the president is so worried
about. He knows, too well, that the practices he authorized or
ordered violate Common Article 3 of the Geneva Convention. The
recent Supreme Court decision in Hamdan vs. Rumsfeld made that
explicit, but the court's holding shouldn't have come as a surprise.
It only confirmed what most legal scholars (and military lawyers)
have been telling the White House for years.
- Rosa Brooks, Our Torturer-in-Chief,
LA Times, September 22, 2006
Furthermore, how Bush defines torture
is quite different to how most people understand it. Attorney
Barbara Olshansky, also from the Center for Constitutional Rights,
And when [President Bush] says the United
States doesn't torture and I never authorize torture, that is
a very interesting word play, because all of the government's
documents, all of the White House documents, go to this issue
of redefining torture in a way that we don't define it in the
United States or in the world. And that definition says torture
only occurs when someone's at the risk of immediate full organ
failure or death. So that's the word "torture" that
the president is using. That's not our constitutional definition
of torture. That's not the international definition of torture.
And you know what? That's not the American people's definition
- Barbara Olshansky, As CIA Detainees
Transferred to Guantanamo, President Bush Acknowledges Secret
Prisons, Interviewed by Democracy Now!, September 7, 2006
It has been known for a very long time
that torture-or whatever one wishes to call some of the tactics-does
not produce reliable intelligence, as people will confess to anything
in order to have the torture stop.
As an aside, of the various torture methods
that was initially feared to be permissible by the Bush Administration
(as "alternative interrogation" techniques) is water-boarding,
which is threatening to drown the prisoner through simulation.
In a post by David Corn showing photos of what water-boarding
torture looks like, Corn cites an email received from the photo
owner, Jonah Blank, an anthropologist and former Senior Editor
of US News & World Report. He is also a professorial lecturer
at Johns Hopkins School of Advanced International Studies and
has taught at Harvard and Georgetown. Blank notes the following
Not only do waterboarding and the other
types of torture currently being debated put us in company with
the most vile regimes of the past half-century; they're also designed
specifically to generate a (usually false) confession, not to
obtain genuinely actionable intel. This isn't a matter of sacrificing
moral values to keep us safe; it's sacrificing moral values for
no purpose whatsoever.
- Jonah Blank in email to David Corn,
This is what Waterboarding looks like, September 28, 2006
Challenging the Bill
Although legal groups are preparing to
challenge this bill, that could take a long time to resolve. Furthermore,
US Attorney General, Alberto Gonzalez, is in full support of Bush's
anti-terror policies and tactics, and as the Associated Press
revealed, Gonzalez has even warned federal judges not to substitute
their personal views for the president's judgments in wartime.
Interestingly, Gonzales is accusing federal
judges of using "personal views" if they do not fall
in line, and implies that Bush's judgments do not need questioning-by
some of the top experts in the legal field. (It also questions
whether Gonzales himself is therefore too unquestioning in his
role as US Attorney General.)
Gonzales notes that this is because the
President's judgments are being made during "wartime".
Yet, as argued long ago, to describe to the 9-11 terrorist attacks
as an act of war rather than a criminal act allowed the president
to declare a potentially never-ending war (and on an idea of terror,
rather than against specific terrorist elements), and therefore
claim additional powers that would otherwise be more questionable.
This most fundamental point is hardly ever questioned.
The previously mentioned New York Times
article also notes that, "Over all, the legislation reallocates
power among the three branches of government, taking authority
away from the judiciary and handing it to the president."
This serious implication of this is summarized by Bruce Ackerman,
a professor of law and political science at Yale University, interviewed
by the New York Times. He fears that, "If Congress can strip
courts of jurisdiction over cases because it fears their outcome,
judicial independence is threatened." In effect, the Act
ironically codifies into law the ability for the Bush Administration
to act outside the law.
Inter Press Service noted the concerns
of many rights groups, and quoted Christopher Anders, legislative
council for the American Civil Liberties Union, who said, "Nothing
could be less American than a government that can indefinitely
hold people in secret torture cells, take away their protections
against horrific and cruel abuse, put them on trial based on evidence
they cannot see, sentence them to death based on testimony literally
beaten out of witnesses, and then slam shut the courthouse door
for any habeas corpus petition. But that's exactly what Congress
And as the Center for Constitutional Rights
commented: "Congress is now rubber-stamping a bill that was
written by the President which gives the President expansive power
to detain without judicial oversight. If the Military Commissions
Act is passed, it will grant the President the privilege of kings,
allowing him to imprison any critics as alleged 'enemy combatants,'
never to see the inside of a court room or to have the chance
to challenge their detention or their treatment. What would we
say if another country passed a law making it legal to snatch
U.S. citizens and detain them indefinitely?"
If rights group hope to challenge this,
as Amnesty International noted above, it would be a long struggle,
because, as the New York Times also notes, this Act got Congressional
approval, not just executive fiat, thus giving it a sense of legitimacy.
"Earlier Supreme Court decisions have suggested that the
president and Congress acting together in the national security
arena can be an all-but-unstoppable force."