2006 US Military Commissions Act

Overview

The United States Military Commissions Act of 2006 is an act of Congress signed into law by president George W. Bush on 2006-10-17. The law can be used to detain anyone in U.S. jurisdiction, including U.S. citizens, in a military prison without access to a lawyer for indefinite amounts of time, on the mere pretext of suspicion (no evidence required). Previously, the common law principle of habeas corpus [W] prevented this.

• Full text: US Public Law 109-366

Objections

This page is in need of updating. The template usage is obsolete. Also, these objections have largely been excerpted from here and are only loosely organized into a structured debate; they need to be checked, possibly rephrased for clarity and structure, and (hopefully) answered by an opposing party.

Historically, such legislation has not only been unsuccessful at its stated goal but has led to serious abuse.

Precedent: Terrorist and Disruptive Activities (Prevention) Act (India)

The Act includes language that protects everyone in the US military or government from prosecution for any acts of torture committed in the name of fighting terrorism as long as they can claim they didn't know those acts were illegal.

Section 8 makes it clear that section 1004 of the Department of Defense Appropriations Act, 2006 (confusingly referred to as the Detainee Treatment Act of 2005) is retroactively applicable back to 9/11 and also applies to any acts committed under the MCA. This in effect gives the entire Bush administration a blanket pardon for any act of torture committed since 9/11.

Jack Cafferty: "What are we becoming?" (video) Jack Cafferty on the blanket pardon (see also: partial transcript, with downloads of video)

the bill contains a definition of "wrongfully aiding the enemy" which labels all American citizens who breach their "allegiance" to President Bush and the actions of his government as terrorists subject to possible arrest, torture and conviction in front of a military tribunal.

section 950j criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court:

"Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."

2006-09-29 Gonzales Cautions Judges on Interfering (alt): "Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime."

the Act nullifies the Geneva Conventions, "repudiat[ing] a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret – there's no requirement that this list be published." (2006-09-28 NYT)

the Act revokes habeas corpus:

2006-09-28 NYT: "Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence."

The Act allows "coerced evidence" if a judge considers it reliable (coercion has never been known to produce reliable evidence) and relevant. "Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses." (2006-09-28 NYT) This goes against centuries of legal tradition which considers information obtained under duress (e.g. forced confessions) to be legally unusable.

The definition of torture that the legislation cites is US code title 18 section 2340. This is a broad definition of torture and completely lacks the specific clarity of the Geneva Conventions. This definition allows the use of torture that is, "incidental to lawful sanctions." In alliance with the bill's blanket authority for President Bush to define the Geneva Conventions as he sees fit, this legislates the use of torture.

The Act outlaws torture only for (meaning as committed by?) "enemy combatants," and in fact outlaws the retaliation of any military against the United States as "murder." Those deemed "enemy combatants" are not even allowed to fight back yet the government affords itself every power including the go-ahead to torture.

It defines any individual as a terrorist on the basis of:

Destruction of any property, which is deemed punishable by any means of the military tribunal's choosing.

Any violent activity whatsoever if it takes place near a designated protected building, such as a charity building.

A change of the definition of "pillaging" which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants.

section 950v.27 defines spying and subjects it to the death penalty under a military tribunal:

"-Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct."

Query: It's not clear if Section 948c, which states that "Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.", is limiting applicability to only alien enemy combatants or merely specifically including them in addition to whoever is normally included by law (and, if the latter, who would this be? where would it be specified?). Obviously if this applies only to alien enemy combatants, then it is not in any way restricting the civil rights of American citizens (although it would then also be failing to specify punishments for anyone on our side who commits atrocities, torture, etc.)

950v.b.26. says "Wrongfully aiding the enemy.--Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct." For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. This would seem to indicate that the Act is intended to apply to US citizens. Possibly the ambiguity (as well as the blatant unconstitutionality of the whole thing -- abrogating our treaty obligation to abide by the Geneva Conventions, for example) could be used to strike down the entire Act.

This combination of provisions means that "All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial" (2006-09-28 NYT), an intolerably un-democratic and un-constitutional situation.

The Act "bars the suspect from even having knowledge of the charges against him - making a case for defense impossible." (2006-09-29 PP1)

Query: Where is the language barring the suspect from knowing the charges? (It is not difficult to find cases where suspects have been barred this way, so it seems unlikely anyone would try to contradict this claim... but documentation is always good.)

Links

Reference

• Official legislation text:
  • 2006-09-22 S3930 (Senate, sponsored by Senator Mitch McConnell)
  • 2006-09-12 HR6054 (House)
    • other versions & related
  • HR6166
• Wikipedia
• Conservapedia:no article; search for "commissions" doesn't find any similar titles (first checked 2007-08-28, verified 2008-02-11)
• dKosopedia

Commentary

• 2006-09-30
  • Rounding Up U.S. Citizens by Marjorie Cohn, professor at Thomas Jefferson School of Law and president of the National Lawyers Guild: “...it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."” “Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely.” (That would, of course, include Issuepedia authors and editors.)
  • Where were you the day America died?: many excerpts from related articles, with links.
  • Congress may give the president the power to lock up almost anyone he thinks is a terror threat by Bruce Ackerman (first forum entry is a reprint of Ackerman's article originally published in the LA Times, which is otherwise only available by subscription)
    • One poster raises a point which is obviously going to come up again: "How should we treat someone (a citizen or otherwise) who meets with terrorists planning on say, blowing up a building or bridge, or maybe spreading smallpox and says, "I don't want to get involved with the attack itself, but I believe in what you're doing, so here's some money. .. I don't think a person who can do that is an American anymore. I don't believe they have any rights at all, anymore. They're done, as far as I'm concerned. They should not be given access to our legal courts, that is -- they should not be afforded the freedoms that ordinary non-terrorist people have. They should be treated as enemy combatants." The whole point of such procedures is: WHAT IF THEY DIDN'T ACTUALLY DO IT?? This aspect of the Act makes it more difficult, and perhaps impossible under some circumstances, for an innocent arrestee to prove his innocence. But it seems pro-Bush people aren't interested in justice anymore, if it gets even slightly in the way of their Holy War on Terror, so we shouldn't expect them to be swayed by possible gross miscarriages thereof. --Woozle 15:02, 23 September 2007 (EDT)
  • Venus Envy (webcomic): a personal perspective, in graphic form
• 2006-09-29 PP1 Torture Bill States Non-Allegiance To Bush Is Terrorism (based on HR6166)
• 2006-09-29 PP2 Bush Given Authority To Sexually Torture American Children: phrased in somewhat emotional language, but this is at least somewhat justified by the fact that it does demonstrate the extreme measures to which Bushco are willing to go in their Holy War on Terror.
• 2006-09-29 President Bush Pardons Himself for War Crimes (video link and partial transcript): even the uber-conservative John Birch Society agrees with the "blanket pardon" interpretation... or at least this one writer on their web site does... and he doesn't say much about it... and JBS is perhaps more constitutionalist than conservative, so Bush would be rather antithetical to their mission in general...
• 2006-09-28 NYT Rushing Off a Cliff (New York Times house editorial): the Act "will make American troops less safe and do lasting damage to our 217-year-old nation of laws" while actually doing nothing to protect the nation from terrorists." ... "Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them." "A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted."