US Military Commissions Act 2006—Unchecked Powers?

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  • by Anup Shah
  • This Page Created Saturday, September 30, 2006

On this page:

  1. US Senate votes to roll back habeas corpus, use torture, and provide immunity for US officials from torture prosecution
    1. Stripping habeas corpus and other fundamental rights
    2. Power to detain indefinitely and torture
    3. Giving US officials immunity from prosecution
  2. Constitution, Rights Groups, and Others Alarmed
  3. Act Erodes Democratic Accountability of US Government
  4. Bush Says He Doesn’t Do Torture—Depends On Your Definition
  5. Challenging the Bill

US Senate votes to roll back habeas corpus, use torture, and provide immunity for US officials from torture prosecution

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:

  1. Strips the right of detainees to habeas corpus (the traditional right of detainees to challenge their detention);
  2. 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;
  3. 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 foundation1. 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 standards2 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 (see previous link) and is summarized here:

Stripping habeas corpus and other fundamental rights

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 enemy combatant.
  • Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
  • 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 trial rights.
  • 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 military officers.
  • 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 law.
  • 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 Conventions.
  • 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.

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Constitution, Rights Groups, and Others Alarmed

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 human rights:

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 or trial
  • 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 law3, 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 the problem.

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:

  1. Amy Goodman:

    … if you could explain exactly what this bill that the Senate has just approved …

  2. 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 that judgment.

    … 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.

  3. Amy Goodman:

    Michael Ratner of the Center for Constitutional Rights, … your response … about this groundbreaking legislation?

  4. Michael Ratner:

    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 Approval4, Democracy Now!, September 29, 2006 [citing rushed transcript]

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Act Erodes Democratic Accountability of US Government

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).

Als