Part One (Part Two Follows)
October 9th, 2006

10 days ago, by a vote of 65 to 34, Congress passed the Military Commissions Act of 2006 (MCA). To facilitate the prosecution of detainees that the Bush Administration “disappeared” into secret CIA custody for several years, Congress created a system of justice that is far inferior to that of the federal courts and courts-martial. And not only did Congress give the Administration much of what sought in terms of substandard justice, it also allowed the Administration to pack the bill with a grab-bag of unnecessary and abusive measures.

With 10 separate sections, a few hundred provisions, and thirty-eight pages of fine print, the military commissions bill is complicated and, in a few areas, unclear. Its concrete impact will be assessed in what will no doubt be a long series of court cases that will end up in the Supreme Court.

What follows is a first stab at interpreting the scope and meaning of this exceedingly harmful bill.

What the MCA Does Not Do

A number of commentators have criticized the MCA for authorizing the indefinite detention of people deemed to be “unlawful enemy combatants.” Yet, unlike the Administration’s initial proposals, the bill does not explicitly address detention. While it does nothing to stop the Administration from holding people indefinitely on Guantanamo and elsewhere, the bill does not explicitly sanction the practice. And, according to the bill’s text, its definition of “unlawful enemy combatant” only specifically applies to its rules on military commissions.

It is nonetheless utterly predictable that the Administration will seek to use the law for the purpose of justifying its detention practices. In light of the Supreme Court’s ruling in Hamdi v. Rumsfeld (which recognized the government’s power to detain enemy combatants for the duration of wartime hostilities), the Administration will claim that the MCA implicitly grants authority to the government to detain those who fall within the bill’s ridiculously overbroad definition of “unlawful enemy combatant.”

The courts should emphatically reject this argument. Without a clear statement of congressional intent to authorize the indefinite detention of such a broad category of people, such a position should not lightly be presumed. Any court faced with the question should be guided by the long line of Supreme Court decisions that have held that explicit congressional authorization is required when restrictions on basic rights are imposed.

Definition of “Unlawful Enemy Combatant”

With a bill as pernicious as this one, it is difficult to settle on a single worst provision. The restrictions on the right of habeas corpus probably qualify, but the bill’s overbroad definition of “unlawful enemy combatant” runs a close 2nd.

Under the first prong of the provision, an “unlawful enemy combatant” is defined as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. It would cover someone who provided funds to al Qaeda or the Taliban knowing that the funds would be used to fight against the U.S. (including, given the bill’s apparent understanding of terrorism as a form of hostilities, funds that are used for terrorist attacks in the U.S.).

The material support element of the first prong of the definition - which covers people who have purposefully and materially supported hostilities - exceeds the traditionally-accepted legal definition of combatant. Under international humanitarian law - the laws of war - combatants are people who directly participate in hostilities. People who merely support hostilities - such as cafeteria workers at a military base - are considered civilians. Unlike combatants, they cannot be deliberately targeted for attack.

The 1st prong of the bill’s definition is unjustifiably broad. But the second prong of the definition is far worse. It appears to delegate to the President or Secretary of Defense unrestricted power to deem anyone an unlawful enemy combatant. All it requires is that a “competent tribunal” like a Combatant Status Review Tribunal (CSRT) make the determination. (CSRTs are the administrative boards that review detentions at Guantanamo.) The bill itself says nothing about the substance of the criteria that the tribunal should apply.

The definition as a whole is thus so radically overbroad that one is tempted to attribute its breadth to a drafting error (perhaps it was originally written as a two-part test, not two independent prongs). At any rate, as written, the provision should be struck down as a blatantly unconstitutional delegation of power. And note, in assessing the provision’s scope, that the definition of “unlawful enemy combatant” is not limited to aliens (even though U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions).

Military Commission Proceedings

The bill provides that alien unlawful enemy combatants (but not U.S. citizens) are subject to trial by military commission. As the text of the bill explains, the military commissions that it authorizes are regularly constituted courts, “affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” That is, if saying so is enough to make it so.

The bill’s different treatment of citizens and aliens reflects political calculations, not legal ones. As the U.K. House of Lords found in 2004 in ruling against indefinite detention, such a distinction cannot be justified under international law.

Military commissions consist of at least 5 commissioned military officers, and are presided over by a military judge. In cases in which death is a possible penalty, the commissions must include at least 12 officers.

The defendant is presumed innocent and his guilt must be proven beyond a reasonable doubt. Convictions require a 2/3 affirmative vote of those commission members present at the time of the vote. Sentences of more than 10 years require a 3/4 affirmative vote. The imposition of the death penalty requires a unanimous vote.

The defendant has the right to represent himself. Otherwise, he will have military counsel and, if he chooses, civilian counsel as well. Civilian counsel must be U.S. citizens eligible for access to classified information deemed Secret.

Rules of evidence and procedure

The Secretary of Defense is authorized to prescribe procedures and rules of evidence beyond those that are set out in the bill. These procedures/rules can vary from their courts-martial equivalents as long as the Secretary finds that it is impracticable to abide by courts-martial standards.

Statements obtained under torture are inadmissible as evidence. Yet statements obtained under coercion (including cruel treatment) are admissible under certain circumstances.

Different rules apply for statements obtained pre- and post- December 30, 2005 (the date of the enactment of the Detainee Treatment Act (DTA)). If a coerced statement was obtained before the DTA was enacted, it is admissible if the judge finds it to be “reliable and possessing sufficient probative value,” and if he believes that its admission would serve the interests of justice. Coerced statements taken after the DTA was enacted are, in addition, not admissible if the interrogation methods used to obtain them violate the DTA.

In an important improvement upon the rules that the Administration originally sought, the defendant must be allowed to examine and respond to any evidence seen by the commission. If classified information that the government does not want to reveal to the defendant is needed for prosecution, an unclassified summary can be used. But, in addition, although the defendant’s general right to exculpatory evidence is acknowledged, he is only granted an “adequate substitute” for classified exculpatory information.

Hearsay is admissible as long as the judge finds it to be reliable and the defendant gets advance warning. Evidence obtained without a search warrant is also admissible.

Protecting “Sources, Methods, or Activities”

The bill includes a number of provisions that protect classified “sources, methods, or activities” against being revealed. The likely impact of such provisions is to bar any inquiry into the CIA’s abusive interrogation practices. (For sources, substitute “disappeared” detainees; for methods, substitute torture, and for activities, substitute water-boarding, stress positions, and days without sleep.)

The bill specifies, for example, that during the discovery phase, the judge may protect classified “sources, methods, or activities” from disclosure. It also provides that reliable evidence obtained via classified “sources, methods, or activities” is admissible, even though the sources/methods/activities themselves are protected from disclosure. Finally, it states that the public may be excluded from proceedings in order to protect information whose disclosure would damage national security, including information on “intelligence or bill enforcement sources, methods, or activities.”


Guilty verdicts are automatically referred to a Court of Military Commission Review (each panel of which consists of at least 3 appellate military judges).

The Court of Appeals for the D.C. Circuit has exclusive appellate jurisdiction over the military commission process. The court’s review is limited to examining: 1) whether the decision complied with the procedures, etc., set out in the bill, and 2) whether, “to the extent [they are] applicable,” the decision is consistent with the U.S. Constitution and laws.

“To the extent [they are] applicable” - that’s another kicker.

Crimes Triable by Military Commission

The MCA states that it does not create any new crimes, but simply codifies offenses “that have traditionally been triable by military commissions.” This provision is meant to convince the courts that there are no ex post facto problems with the offenses that the bill lists. In Hamdan v. Rumsfeld, however, a plurality of the Supreme Court (4 justices) found that conspiracy—one of the offenses enumerated in the MCA—was not a crime triable by military commission. The bill’s statement that conspiracy is a traditional war crime, does not, by legislative fiat, make it so.

Section 950v of the MCA names and defines 28 specific crimes that are triable by military commission. Besides conspiracy, they include murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying.

Notably, the crime of “murder by an unprivileged belligerent” is not listed, although a number of Guantanamo detainees were charged with that offense during earlier military commission proceedings, and the offense was included in the draft military commissions bill that the Administration circulated in July. Murder by an unprivileged belligerent—in other words, murder committed by someone who does not have the right under international humanitarian law to participate in hostilities—has never been a criminal offense under international law, so Congress was wise not to include it as an offense in the new bill.

The Rest

Unfortunately, the military commissions bill doesn’t end there. In my next column, I’ll describe provisions that attempt to render the Geneva Conventions unenforceable in court, immunize CIA personnel for past abuses, and bar detainees from asserting their right to habeas corpus.

(source: FindLaw —— Joanne Mariner is a human rights attorney)
The Military Commissions Act of 2006: A Short Primer (Part Two)
Wednesday, Oct. 25, 2006

In the final run-up to the midterm elections, the Republicans are looking to national security to save them from a rout. Exploiting Americans’ fears of terrorism, they accuse Democratic candidates of hindering counterterrorism efforts and exposing the public to the threat of further attacks.

Under the heading “America Weakly,” the website of the Republican National Committee trumpets the fact that “162 House Democrats voted against authorizing military tribunals for dangerous terrorist suspects, including alleged 9/11 mastermind Khalid Sheikh Mohammad.”

The legislation at issue is the Military Commissions Act of 2006 (MCA), a law that even some Republicans have criticized as unconstitutional. Besides authorizing substandard military trials for suspected terrorists, the new law immunizes CIA personnel for past abuses, bars detainees from asserting their right to habeas corpus, and attempts to render the Geneva Conventions unenforceable in court.

In the immediate wake of September 11, when the Patriot Act passed without opposition, a traumatized American public might have been apt to mistake abusive counterterrorism policies for effective ones. But five years later, objective indicators now show that the Bush Administration’s response to terrorism has been, in myriad ways, counterproductive. The recently declassified National Intelligence Estimate confirms that U.S. policies have spawned deep-seated Muslim resentment, and that terrorists are using this resentment to draw recruits.

Rather than marking a new approach, the MCA provides congressional sanction for many of the Administration’s most short-sighted and dangerous counterterrorism policies. While it does not explicitly legitimate torture or arbitrary detention, it places formidable legal obstacles in the way of detainees who would challenge such abuses. Below, following on a column posted two weeks ago, I discuss some of the worst elements of the new law.

CIA Abuses

The MCA was passed in the wake of the Supreme Court’s landmark decision in Hamdan v. Rumsfeld, a ruling that called into question the legality of the Administration’s secret CIA detention program. Hamdan made it clear that abusive interrogation techniques used by the CIA violated international law, and that CIA operatives could be held criminally liable for such abuses.

Reacting to Hamdan, the Bush Administration first pushed to redefine the scope of U.S. obligations under the Geneva Conventions, in particular Common Article 3, the provision at issue in Hamdan. After opposition from within the Republican Party to such an overt repudiation of universally-accepted international norms, the Administration took a different approach. While the MCA does not explicitly rewrite the Common Article 3, it opens the door to the provision’s effective redefinition. It does so by specifying that the War Crimes Act, as amended, satisfies the U.S. obligation to criminalize grave breaches of Common Article 3, and that the president may issue authoritative interpretations of the remainder of the provision.

The law also nullifies the legal impact of the Conventions in domestic courts. Section 5 of the law provides that the Geneva Conventions and related treaties are unenforceable in court in civil cases involving the U.S. government or its agents. It states, specifically, that they may not be invoked “in any habeas corpus or any other civil action or proceeding … as a source of rights in any [U.S. or state] court.” And another provision of the law bars persons deemed unlawful enemy combatants from invoking these treaties as a source of rights.

Notably, the legislation narrows the scope of the War Crimes Act, decriminalizing certain past acts. Previously, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for any Common Article 3 violation, including the cruel, humiliating or degrading treatment of detainees, could be prosecuted under the law.

The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of “grave breaches” of Common Article 3, which are specified and defined in the legislation. And the law is amended retroactively to November 26, 1997, meaning that perpetrators of several categories of what were war crimes at the time they were committed, can no longer be punished under U.S. law.

Now, under the MCA, torture and cruel and inhuman treatment qualify as “grave breaches,” but degrading or humiliating treatment does not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

A twist in the new legislation is that it includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the MCA’s passage, and another that applies to future conduct. If committed after the passage of the MCA, cruel and inhuman treatment only requires a finding of serious and non-fleeting mental pain or suffering. But for abuses committed prior to the law’s passage, the perpetrator can only be penalized if the pain or suffering is “prolonged.”

This provision may immunize from prosecution CIA interrogators who have previously employed abusive interrogation techniques such as waterboarding and extended sleep deprivation — techniques that cause time-limited but severe mental anguish.


The most-criticized provision of the legislation bars aliens held as enemy combatants from filing suit via the writ of habeas corpus to challenge the legality of their detention or to raise claims of torture and other mistreatment.

This provision covers all non-citizens, including longtime legal residents of the United States, and it applies even if they are held inside the United States. Moreover, the prohibition applies even after detainees have been released. As a result, detainees who have been tortured or otherwise mistreated are forever barred from going to a U.S. court to seek redress and to air what has happened to them.

The habeas-stripping provision raises a host of legal questions. The first is whether enemy combatants enjoy a constitutional right to habeas corpus (not just a statutory right to it), a question left unanswered by the Supreme Court’s 2004 opinion in Rasul v. Bush. Note that the constitutional claim will probably be deemed stronger for Qatari student Ali Saleh al-Marri, held as an enemy combatant in the territorial United States, than for the Guantanamo detainees. It is likely to be deemed weakest of all for detainees held in Afghanistan and elsewhere abroad.

A second question with regard to Guantanamo detainees is whether the narrow federal court review of administrative proceeding held on Guantanamo allowed under a 2005 law should be considered an “adequate substitute” for habeas. And courts may also end up assessing whether the right to habeas can legitimately be suspended when a person has been deemed an enemy combatant.


A post-election Congress should take a hard second look at the new law. While the courts are likely to strike down some of the MCA’s worst provisions, a responsible Congress would repeal the law first. The goal of a fair, tough, and effective approach to counterterrorism requires it.

Joanne Mariner is a human rights attorney. Her previous columns on Guantanamo, the detainee cases, and U.S. counterterrorism policy are available in FindLaw’s archive.