The Military Commissions Act
Legislation Predicated on the Official Story of the 9/11/01 Attack
In short, this law rubber-stamps violations of human rights in the "War on Terror."
The Military Commissions Act (MCA) was passed by the US Senate on September 26 by 65 to 34 votes and in the House on September 27 by 253 to 168 votes. It was signed into law by the President on October 18, 2006. 1
The thrust of the Act is to define a category of "unlawful enemy combatant" to include all irregular opposition to US imperialism that engages in "hostilities against the United States," specifying Al Qaeda and Taliban by name, and then if they are not USA citizens -- making them "alien unlawful enemy combatants" subject to "Star-Chamber"-like military commissions. Such parties are excluded from any protections of the Geneva Conventions, including the right to a speedy trial, i.e., justifying indefinite detention without any legal recourse because federal judges are told by law and threat that they have no jurisdiction over such cases. The fundamental Constitutional protections offered to all "persons" is now denied to an important class of captured persons subjected to grave mistreatment from which they have no recourse because the Attorney General Gonzales opines that it is not "torture."
The table of contents of the 38-page House version of the Act suggests that the authors did not even attempt to hide an agenda to abrogate human rights protections enshrined in international treaties.
Sec. 1. Short title; table of contents. Sec. 2. Construction of Presidential authority to establish military commissions. Sec. 3. Military commissions. Sec. 4. Amendments to Uniform Code of Military Justice. Sec. 5. Treaty obligations not establishing grounds for certain claims. Sec. 6. Implementation of treaty obligations. Sec. 7. Habeas corpus matters. Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to protection of certain United States Government personnel. Sec. 9. Review of judgments of military commissions. Sec. 10. Detention covered by review of decisions of Combatant Status Review Tribunals of propriety of detention.2 3
Amnesty International provides this assessment of the Act:
- 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". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.
- Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
- 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.
- Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
- 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 their procedures and in the appointments of military judges and military officers to sit on the commissions.
- 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. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror", which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee. Amnesty International is concerned that the administration appears on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.
- Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President. President Bush 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.
- Limit the right of charged detainees to be represented by counsel of their choosing.
- Fail to provide any guarantee that trials will be conducted within a reasonable time.
- Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
- 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. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".
- 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". Under President Bush, the USA has shown a selective disregard for the Geneva Conventions and the absolute prohibition of torture or other ill-treatment.
- Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.
The Act explicitly and by deliberate deception appears to grant rights even while taking them away. For example, the accused need only be informed of charges against him when it is "practicable" (for the purposes of his captors). Instead of an absolute right to present evidence, examine and respond to evidence against him, and cross-examine witnesses -- which it is declared he has the right to do -- there is the qualifier "as provided by this chapter." The chapter provides that no such rights exist when national security is compromised, as determined by the prosecutor and the judge. It declares that statements obtained by torture are prohibited -- but makes "torture" an exquisite term of art. It declares that "No person shall be required to testify against himself" then quietly elsewhere says that evidence obtained by coercion or compulsory self-incrimination is allowed if the judge believes it has "probative value" that "serve the interests of justice," and of course are fit retroactively to expunge former crimes. If Guantanamo was illegal before, it no longer was illegal before; the legal past can be altered.
2. On Hundred Ninth Congress of the United States of America, access.gpo.gov, [cached]
3. MILITARY COMMISSIONS ACT OF 2006, fas.org, 9/27/06 [cached]
4. United States of America Rubber Stamping Violations in the 'War on Terror', amnesty.org, 9/29/06 [cached]