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Encyclopedia > Military Commissions Act of 2006
President George W. Bush signs into law S. 3930, the Military Commissions Act of 2006, during a ceremony on October 17, 2006 in the East Room of the White House.
President George W. Bush signs into law S. 3930, the Military Commissions Act of 2006, during a ceremony on October 17, 2006 in the East Room of the White House.

The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), enacting Chapter 47A of title 10 of the United States Code, is an Act of Congress (Senate Bill 3930[1]) signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld[2], the Act's stated purpose is to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."[3] Image File history File linksMetadata Bush_signing_Military_Commissions_Act_of_2006. ... Image File history File linksMetadata Bush_signing_Military_Commissions_Act_of_2006. ... George Walker Bush (born July 6, 1946) is the 43rd and current President of the United States, inaugurated on January 20, 2001. ... October 17 is the 290th day of the year (291st in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ... The East Room is one of the largest rooms in the White House, the home of the President of the United States. ... North façade of the White House, seen from Pennsylvania Avenue. ... The United States Code (U.S.C.) is a compilation and codification of the general and permanent federal law of the United States. ... George Walker Bush (born July 6, 1946) is the 43rd and current President of the United States, inaugurated on January 20, 2001. ... October 17 is the 290th day of the year (291st in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ... The Supreme Court of the United States (SCOTUS) is the highest judicial body in the United States and leads the judicial branch of the United States federal government. ... Holding Military commission to try Plaintiff is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. ... This article is becoming very long. ... Camp x-ray, Guantánamo. ...

Contents

Scope of the Act

Sec. 948b. Military commissions generally
(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
(b) Authority for Military Commissions Under This Chapter- The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.
(c) Construction of Provisions- The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.
(d) Inapplicability of Certain Provisions- (1) The following provisions of this title shall not apply to trial by military commission under this chapter:
(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.
(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.
(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.
(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.
(e) Treatment of Rulings and Precedents- The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter.
(f) Status of Commissions Under Common Article 3- A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.
(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
Sec. 948c. Persons subject to military commissions
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
Sec. 948d. Jurisdiction of military commissions
(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) Lawful Enemy Combatants- Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
(d) Punishments- A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war.

The term "competent tribunal" is not defined in the Act itself. It is defined in the US Army Field Manual, section 27-10, for the purpose of determining whether a person is or is not entitled to prisoner of war status, and consists of a board of not less than three officers. It is also a term defined in Article five of the third Geneva Convention. However, the rights guaranteed by the Third Geneva Convention to lawful military combatants are expressly denied to unlawful military combatants for the purposes of this Act by Section 948b: The Uniform Code of Military Justice (UCMJ) is the foundation of military law in the United States. ... Development of the Geneva Conventions from 1864 to 1949. ... The World Trade Center on fire The September 11, 2001 attacks were a series of coordinated terrorist attacks against the United States on September 11, 2001. ... Competent Tribunal is a term used article five of the third Geneva Convention, which states: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall... Geneva Convention definition A prisoner of war (POW) is a soldier, sailor, airman, or marine who is imprisoned by an enemy power during or immediately after an armed conflict. ... Development of the Geneva Conventions from 1864 to 1949. ... Wikisource has original text related to this article: Third Geneva Convention The Third Geneva Convention (or GCIII) primarily regarded the treatment of prisoners of war (POWs), and also touched on other topics. ...

(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.[4]

The criteria by which a Combatant Status Review Tribunal may determine someone to be an "alien unlawful enemy combatant" under Section II of the definition are provided by the Detainee Treatment Act of 2005, and referenced in section 10 of the Military Commissions Act of 2006. The Combatant Status Review Tribunal is composed of three neutral officers, none of whom was involved with the detainee. One serves as a judge advocate, and the senior ranking officer serves as the president of the tribunal. Detainees may testify before the tribunal, call witnesses, and introduce any other evidence. Following the hearing the tribunal will determine in a closed-door session whether the detainee is properly held as an enemy combatant. The criteria by which "another competent tribunal" might do so are specified Detainee Treatment Act of 2005. The McCain Detainee Amendment was an amendment to the United States Senate Department of Defense Authorization bill, commonly referred to as the Amendment on (1) the Army Field Manual and (2) Cruel, Inhumane, Degrading Treatment, amendment #1977 and also known as the McCain Amendment 1977. ... Judge Advocate Generals Corps, also known as JAG, is the judicial arm of the United States armed forces, consisting of autonomous departments in the Air Force, Army and Navy. ...


Provisions

The Act changes pre-existing law to explicitly forbid the invocation of the Geneva Conventions when executing the writ of habeas corpus or in other civil actions [Act sec. 5(a)]. This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases. In common law jurisdictions, habeas corpus, or more precisely habeas corpus ad subjiciendum, is a prerogative writ which requires the addressee to produce in court a person in its custody and justify his or her imprisonment. ...


If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying alien unlawful enemy combatants.


‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges against him as soon as practicable.

  • A civilian defense attorney may not be used unless the attorney has been determined to be eligible for access to classified information that is classified at the level Secret or higher. [10 U.S.C. sec. 949c(b)(3)(D)]
  • A finding of Guilty by a particular commission requires only a two-thirds majority of the members of the commission present at the time the vote is taken [10 U.S.C. sec. 949m(a)]
  • In General- No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories. [Act sec. 5(a)]
  • As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. [Act sec. 6(a)(3)(A)]
  • No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense. [10 U.S.C. sec. 949h(a)].

The Act also contains provisions (often referred to as the "habeas provisions") removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is 'awaiting determination' regarding enemy combatant status. This allows the United States government to detain such aliens indefinitely without prosecuting them in any manner. For information on the type of fish called Lawyer, see the article on Burbot. ...


These provisions are as follows:[5]

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Applicability

The text of the law states that its "Purpose" is to "establish procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." While the most controversial provisions in the law refer to alien unlawful enemy combatants, earlier provisions (section 948a) refer to unlawful enemy combantants, not excluding U.S. citizens. Therefore, there is some controversy over whether this law affects the rights of habeas corpus for United States citizens. Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful combatant according to the laws of war as specified in the Third Geneva Convention. ... Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful combatant according to the laws of war as specified in the Third Geneva Convention. ...


Legal and Constitutional scholar Robert A. Levy commented that the Act denies habeas rights only to aliens, and that U.S. citizens detained as "unlawful combatants" would still have habeas rights and could challenge their indefinite detention.[6] While formally opposed to the Act, Human Rights Watch has also concluded that the new law limits the scope of trials by military commissions to non-U.S. citizens including all legal aliens. [7] CBS legal commentator Andrew Cohen has commented on this question and writes that the "suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad" and that "it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted."[8] In common law countries, habeas corpus (/heɪbiÉ™s kɔɹpÉ™s/), Latin for you [should] have the body, is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. ... Human Rights Watch Banner Human Rights Watch is a United States-based international non-government organization that conducts research and advocacy on human rights. ... In common law countries, habeas corpus (/heɪbiÉ™s kɔɹpÉ™s/), Latin for you [should] have the body, is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. ...


On the other hand, congressman David Wu (D-OR) stated in the debate over the bill on the floor of the House of Representatives that "by so restricting habeas corpus, this bill does not just apply to enemy aliens. It applies to all Americans because, while the provision on page 93 has the word "alien in it, the provision on page 61 does not have the word alien in it." For more on this interpretation see Criticisms section. Seal of the House of Representatives The United States House of Representatives (or simply the House) is the lower of the two chambers of the United States Congress, the other being the Senate. ...


Legislative history

Wikinews has news related to:
President Bush signed into law the Military Commissions Act of 2006

The bill passed the Senate, 65-34, on September 28, 2006.[9] Image File history File links WikiNews-Logo. ... Wikinews is a free-content news source and a project of the Wikimedia Foundation. ... September 28 is the 271st day of the year (272nd in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ...


The bill passed in the House, 250-170-12, on September 29, 2006.[10] September 29 is the 272nd day of the year (273rd in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ...


Bush signed the bill into law on October 17, 2006. October 17 is the 290th day of the year (291st in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ...


Legislative actions in the Senate

Several amendments were proposed before final passage of the bill by the Senate; all were defeated. Among them were an amendment by Robert Byrd which would have added a sunset provision after five years, an amendment by Ted Kennedy which would have outlawed specific interrogation techniques including waterboarding (SA.5088[11]), and an amendment by Arlen Specter (R-PA) and Patrick Leahy (D-VT) preserving habeas corpus. Specter's amendment was rejected by a vote of 51-48. Specter voted for the bill despite the defeat of his amendment. The bill was finally passed by the house on September 29, 2006 and presented to the President for signing on October 10, 2006[12]. Robert Carlyle Byrd (born November 20, 1917) is the senior United States Senator from West Virginia and a member of the Democratic Party. ... Edward Moore Ted Kennedy (born February 22, 1932) is the senior United States Senator from Massachusetts and a member of the Democratic Party. ... Painting of waterboarding from Cambodias Tuol Sleng Prison Waterboarding is a form of torture[1][2][3][4] which is used to obtain information, coerce confessions, and for punishment and intimidation. ... Arlen Specter (born February 12, 1930) is a United States Senator from Pennsylvania. ... The Republican Party is one of two major contemporary political parties in the United States; the other being the Democratic Party. ... Pennsylvania ratified the Constitution on December 12, 1787. ... Patrick Joseph Leahy (born March 31, 1940) is the senior United States Senator from Vermont. ... The Democratic Party is one of two major contemporary political parties in the United States; the other being the Republican Party. ... Vermont was admitted to the Union on March 4, 1791. ... September 29 is the 272nd day of the year (273rd in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ... October 10 is the 283rd day of the year (284th in leap years). ... For the Manfred Mann album, see 2006 (album). ...


Final passage in the Senate

Party AYE NAY ABS
Republicans 53 1 1
Democrats 12 32 0
Independent 0 1 0
Total 65 34 1

Final passage in the House

Party AYE NAY ABS
Republicans 218 7 5
Democrats 32 162 7
Independent 0 1 0
Total 250 170 12
  • AYE = Votes for the act
  • NAY = Votes against the act
  • ABS = Abstentions/no votes

Official statements

Today, the Senate sent a strong signal to the terrorists that we will continue using every element of national power to pursue our enemies and to prevent attacks on America. The Military Commissions Act of 2006 will allow the continuation of a CIA program that has been one of America's most potent tools in fighting the War on Terror. Under this program, suspected terrorists have been detained and questioned about threats against our country. Information we have learned from the program has helped save lives at home and abroad. By authorizing the creation of military commissions, the Act will also allow us to prosecute suspected terrorists for war crimes[13]. George Walker Bush (born July 6, 1946) is the 43rd and current President of the United States, inaugurated on January 20, 2001. ... For other uses, see President of the United States (disambiguation). ... The war on terrorism or war on terror (abbreviated in U.S. policy circles as GWOT for Global War on Terror) is an effort by the governments of the United States and its principal allies to destroy groups deemed to be terrorist (primarily radical Islamist organizations such as al-Qaeda...

Simply put, this legislation ensures that we respect our obligations under Geneva, recognizes the President’s constitutional authority to interpret treaties, and brings accountability and transparency to the process of interpretation by ensuring that the executive’s interpretation is made public. I would note that there has been opposition to this legislation from some quarters, including the New York Times editorial page. Without getting into a point-by-point rebuttal here on the floor, I would simply say that I have been reading the Congressional Record trying to find the bill that page so vociferously denounced. The hyperbolic attack is aimed not at any bill this body is today debating, nor even at the Administration’s original position. I can only presume that some would prefer that Congress simply ignore the Hamdan decision, and pass no legislation at all. That, I suggest to my colleagues, would be a travesty. [14]. John Sidney McCain III (born August 29, 1936) is an American politician. ... The United States Senate is the upper house of the U.S. Congress, smaller than the United States House of Representatives. ... The New York Times is an internationally known daily newspaper published in New York City and distributed in the United States and many other nations worldwide. ...

Passing laws that remove the few checks against mistreatment of prisoners will not help us win the battle for the hearts and minds of the generation of young people around the world being recruited by Osama bin Laden and al Qaeda. Authorizing indefinite detention of anybody the Government designates, without any proceeding and without any recourse -- is what our worst critics claim the United States would do, not what American values, traditions and our rule of law would have us do. This is not just a bad bill, this is a dangerous bill. [15]. Patrick Joseph Leahy (born March 31, 1940) is the senior United States Senator from Vermont. ... The United States Senate is the upper house of the U.S. Congress, smaller than the United States House of Representatives. ... Osama bin Muhammad bin Awad bin Laden (Arabic: ‎; born March 10, 1957[1]), most often mentioned as Osama bin Laden or Usama bin Laden, is a Saudi Arabian militant Islamist and is widely believed to be one of the founders of the organization called al-Qaeda. ... Map of major attacks made by Al Qaeda Al-Qaeda or Al-Qaida or Al-Qaida ( al-qāʕida, trans. ...

Criticism

On the grounds that the Act is unconstitutional

A number of legal scholars and Congressional members - including Senate Judiciary Committee Chairman Arlen Specter (R-PA) - have said that the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion."[16] Arlen Specter (born February 12, 1930) is a United States Senator from Pennsylvania. ... The Republican Party is one of two major contemporary political parties in the United States; the other being the Democratic Party. ... Official language(s) English, Pennsylvania Dutch Capital Harrisburg Largest city Philadelphia Area  Ranked 33rd  - Total 46,055 sq mi (119,283 km²)  - Width 280 miles (455 km)  - Length 160 miles (255 km)  - % water 2. ...


On the grounds that the Act applies to U.S. citizens

The Act has also been denounced by critics who assert that its wording makes possible the permanent detention and torture (as defined by the Geneva Conventions) of anyone - including American citizens - based solely on the decision of the President.[17] Indeed, the wording of section 948b[18] of the act appears to explicitly contradict the Third Geneva Convention of which the United States is currently a signatory. Development of the Geneva Conventions from 1864 to 1949. ... Wikisource has original text related to this article: Third Geneva Convention The Third Geneva Convention (or GCIII) primarily regarded the treatment of prisoners of war (POWs), and also touched on other topics. ...


In the House debate, Representative David Wu of Oregon offered this scenario: Congressman David Wu David Wu (Traditional Chinese: 吳振偉; pinyin: Wú ZhènwÄ›i; born April 8, 1955) is a Democratic member of the U.S. House of Representatives for Oregon, representing the states 1st Congressional District (map). ... Official language(s) None Capital Salem Largest city Portland Area  Ranked 9th  - Total 98,466 sq mi (255,026 km²)  - Width 260 miles (420 km)  - Length 360 miles (580 km)  - % water 2. ...

Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.[19] Donald Henry Rumsfeld, (born July 9, 1932) is a U.S. politician and businessman, who was the 13th Secretary of Defense under President Gerald Ford from 1975–1977, and the 21st Secretary of Defense under President George W. Bush from 2001–2006. ...

One has described the Act as "the legalization of the José Padilla treatment" - referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged.[20] A legal brief filed on Padilla's behalf alleges that during this time he was subjected to sensory deprivation, sleep deprivation, and enforced stress positions.[21] He continues to be held by the United States. José Padilla (also known as Abdullah al-Muhajir) (born October 18, 1970) is a U.S. citizen accused of being a terrorist by the United States government. ... A prisoner at the United States Camp X-ray facility at Guantanamo Bay in Cuba being subjected to sensory deprivation, through the use of ear muffs, visor, breathing mask and heavy mittens. ... Sleep deprivation is a general lack of the necessary amount of sleep. ...


According to Bill Goodman, Legal Director of the Center for Constitutional Rights, and Joanne Mariner, from FindLaw, this bill redefines unlawful enemy combatant in such a broad way that it refers to any person who is NOTE: The following text may have been literally copied from http://www. ... FindLaw. ...

engaged in hostilities or who has purposefully and materially supported hostilities against the United States.

This makes it possible for US citizens to be designated unlawful enemy combatant because

it could be read to include anyone who has donated money to a charity for orphans in Afghanistan that turns out to have some connection to the Taliban or a person organizing an anti-war protest in Washington, D.C. Flag flown by the Taliban. ... Anti war protest in Melbourne, Australia, 2003 Anti_war is a name that is widely adopted by any social movement or person that seeks to end or oppose a future or current war. ... Nickname: DC, The District Motto: Justitia Omnibus (Justice for All) Location of Washington, D.C., in relation to the states Maryland and Virginia Coordinates: Federal District District of Columbia  - Mayor Adrian M. Fenty (D)  - City Council Chairperson: Vincent C. Gray (D) Ward 1: Jim Graham (D) Ward 2: Jack Evans...

As such habeas corpus may be denied to US citizens.[22] Jennifer Van Bergen, a journalist with a law degree, responds to the comment that habeas corpus has never been afforded to foreign combatants with the suggestion that using the current sweeping definition of the war on terror and unlawful combatant, it is impossible to know where the battlefield is and who combatants are. Also, she notes that already most of the detentions are unlawful.[23]


The Act also contains the suggestion that unlawful enemy combatant refers to any person

who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Some commentators have interpreted this to mean that 'if the President says you are an enemy combatant, then you effectively are.'[24]


Because of the flawed nature of Combatant Status Review Tribunals

Further information: Combatant Status Review Tribunal and No-hearing hearings

Human Rights First has commented on the numerous flaws in the Military Commissions Act. Among them they cite "(s)ubjecting detainees to military commissions based on the deeply flawed Combatant Status Review Tribunal’s status determination."[25] To meet Wikipedias quality standards and make it easier to understand, this article or section may require cleanup. ... No-hearing hearings is the title of a report published by Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students, on October 17, 2006. ... Human Rights First is a U.S. based association formerly known as Lawyers Committee for Human Rights. ...


It has been established by the Seton Hall study "No-hearing hearings" that the current CSRT's are inadequate and biased in favour of determining a suspect "enemy combatant." This analysis by Denbeaux et al led to the following conclusions regarding Combatant Status Review Tribunals:[26][27][28] The term unlawful combatant (also unlawful enemy combatant or unprivileged combatant/belligerent) denotes people denied the protection of the Geneva Conventions; those to whom protection is recognised as due are referred to as lawful combatants. ...

  • The government did not produce any witnesses in any hearing.
  • The military denied all detainee requests to inspect the classified evidence against them.
  • The military refused all requests for defense witnesses who were not detained at Guantanamo.
  • In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
  • In 91 percent of the hearings, the detainees did not present any evidence.
  • In three cases, the panel found that the detainee was “no longer an enemy combatant,” but the military convened new tribunals that later found them to be enemy combatants.

According to Associated Press Mark Denbeaux said “These were not hearings. These were shams,” and called the hearings a show trial.[28] Mark P. Denbeaux (b. ... The term show trial serves most commonly to label a type of public trial in which the judicial authorities have already determined the guilt of the accused: the actual trial has as its only goal to present the accusation and the verdict to the public as an impressive example and...


A previous study, the Denbeaux study, had already established that 92% of captives at Guantanamo were not al-Qaeda fighters and appeared to have been captured by bounty hunters, in return for a $5,000 reward. The Denbeaux study was a study lead by Professor Mark Denbeaux of Seton Hall University. ... Al-Qaeda (Arabic: القاعدة, the foundation or the base) is the name given to a worldwide network of militant Islamist organizations under the leadership of Osama bin Laden. ... A bounty hunter is an individual who seeks out fugitives (hunting) for a monetary reward (bounty), for apprehending by law, if such laws exist. ...


With the Military Commissions Act in mind the Washington Post stated:[29] The United States Military Commissions Act of 2006, Pub. ...

If the actual trials of the detainees are as empty and shallow and pre-ordained as were the Status Review Tribunals there is every reason to be mortified at the prospect -- made real by the legislation -- that the federal courts will be frozen out of vital oversight functions. If a regular trial court proceeding were this shoddy, this unwilling to perform a truth-seeking function, this unable to achieve a fair process, the judge presiding over it would be impeached.

Nat Hentoff commented similarly in the Village Voice:[30] The Village Voice is a New York City-based weekly newspaper featuring investigative articles, analysis of current affairs and culture, arts reviews and events listings for New York City. ...

Co-author Joshua Denbeaux tells me: "The government's own documents proved that the government's claims that the prisoners were the 'worst of the worst' was a false and shameful public relations ploy . . . We hope that our reports will convince Congress to amend the Military Commissions Act and restore federal jurisdiction." If that happens, the prisoners could contest their conditions of confinement, their imprisonment, and their sentences.

On other grounds

Amnesty International said that the Act "contravenes human rights principles."[31] Amnesty International symbol Amnesty International (commonly known as Amnesty or AI) is a non-governmental organization (NGO) comprising a worldwide movement of people who campaign for internationally recognized human rights.[1] Essentially it compares actual practices of human rights with internationally accepted standards and demands compliance where these have not...


An editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts."[32] The Alien and Sedition Acts were a series of laws passed by the Federalists in 1798 during the administration of President John Adams. ...


American Civil Liberties Union Executive Director Anthony D. Romero said, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions." [33] The American Civil Liberties Union (ACLU) is a major American non-profit organization with headquarters in New York City, whose stated mission is to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.[1] It...


Jonathan Turley, professor of constitutional law at George Washington University, in an interview, called the Military Commissions Act of 2006 "a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison said that he created a system essentially to be run by devils, where they could not do harm, because we didn’t rely on their good motivations. Now we must."[34] Professor Jonathan Turley teaches at The George Washington University Law School where he holds the Shapiro Chair for Public Interest Law. ...   See Washington University (disambiguation) for institutions with similar names. ... James Madison (March 16, 1751 – June 28, 1836), an American politician and fourth President of the United States of America (1809–1817), was one of the most influential Founders of the United States. ...


Several commentators observe that the MCA effectively absolves the Bush administration and others for possible crimes committed in the War on Terror by negating the principle of command responsibility. Most notably, the US Supreme Court ruled in Hamdan v. Rumsfeld that the Geneva Convention applies to all prisoners. Since the War Crimes Act of 1996 defined any breach of Geneva as a war crime, this opened up the possiblility for legal challenges for anyone involved in the abuse of detainees.[35] The MCA rewrites the War Crimes Act retroactively to November 26, 1997, making those offenses which were considered War Crimes before the MCA was adopted no longer punishable under US law.[36] Because of this, investigations into possible wrongdoing in the War on Terror seem unlikely within the United States; therefore the Center for Constitutional Rights and the International Federation for Human Rights have started legal proceedings in Germany, invoking universal jurisdiction.[37] Nat Hentoff opined in the Village Voice that The war on terrorism or war on terror (abbreviated in U.S. policy circles as GWOT for Global War on Terror) is an effort by the governments of the United States and its principal allies to destroy groups deemed to be terrorist (primarily radical Islamist organizations such as al-Qaeda... Peace Palace in The Hague Command responsibility, sometimes referred to as the Yamashita standard, or the Medina standard is the doctrine of hierarchical accountability in cases of war crimes. ... The War Crimes Act of 1996 was passed by the United States Congress and signed into law by President Bill Clinton. ... In the context of war, a war crime is a punishable offense under International Law, for violations of the laws of war by any person or persons, military or civilian. ... NOTE: The following text may have been literally copied from http://www. ... The International Federation of Human Rights (Fédération Internationale des Ligues des Droits de lHommes, FIDH) is an international non-governmental human rights organization created in 1922 and currently based in Paris. ... Universal jurisdiction or universality principle is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. ... The Village Voice is a New York City-based weekly newspaper featuring investigative articles, analysis of current affairs and culture, arts reviews and events listings for New York City. ...

conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush and Hamdan v. Rumsfeld The Supreme Court Building, Washington, D.C. Rasul v. ... Holding Military commission to try Plaintiff is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. ...

makes US government officials culpable for war crimes.[30]


Support

Supporters of the act say that the Constitutional provision guaranteeing habeas corpus does not apply to alien enemy combatants engaged in hostilities against the United States, and that the provisions of the Act removing habeas corpus do not apply to United States citizens; they conclude that therefore the law does not conflict with the Constitution. In common law countries, habeas corpus (/heɪbiəs kɔɹpəs/), Latin for you [should] have the body, is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. ... In common law countries, habeas corpus (/heɪbiəs kɔɹpəs/), Latin for you [should] have the body, is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. ... Citizenship is membership in a political community (originally a city but now a state), and carries with it rights to political participation; a person having such membership is a citizen. ...


National Review columnist Andrew McCarthy argued that since the law applies to "aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it" they do not have a constitutional right to habeas corpus. McCarthy also wrote that the Detainee Treatment Act of 2005, while not allowing a standard habeas corpus review, provides that each detainee "has a right to appeal to our civilian-justice system. — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court." [38] National Review (NR) is a biweekly magazine of political opinion, founded by author William F. Buckley Jr. ...


John Yoo, a former Bush Administration Justice Department official and current professor of law at the University of California, Berkeley, called the Act a “stinging rebuke” of the Supreme Court's Hamdan v. Rumsfeld ruling, calling that ruling “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy.” Yoo cited Johnson v. Eisentrager, in which the court decided that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S. and refused to interpret the Geneva Conventions to give rights in civilian court against the government.[39] John Yoo is a professor of law at the University of California, Berkeley (Boalt Hall), and is best known for his work from 2001 to 2003 in the United States Justice Departments Office of Legal Counsel. ... DOJ headquarters in Washington, D.C. Justice Department redirects here. ... The University of California, Berkeley (also known as UC Berkeley, Berkeley, Cal, and by other names, see below) is the oldest and flagship campus of the ten-campus University of California system. ... Johnson v. ...


Formerly Lieutenant Colonel in the US Army Judge Advocate General’s Corps and current professor at St. Mary's University School of Law, Jeffrey Addicott wrote “the new Military Commissions Act reflects a clear and much-needed Congressional commitment to the war on terror, which to this point has been largely conducted in legal terms by the executive branch with occasional interjections from the judiciary”. [40] In the U.S. Army, Air Force and Marine Corps, a lieutenant colonel is a commissioned officer superior to a major and inferior to a colonel. ... This article is in reference to the U.S. JAG Corps. ... St. ...


Application

Immediately after Bush signed the Act into law, the U.S. Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.[41] The United States Department of Justice (DOJ) is a Cabinet department in the United States government designed to enforce the law and defend the interests of the United States according to the law and to ensure fair and impartial administration of justice for all Americans. ... The United States Court of Appeals for the District of Columbia Circuit, known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. ...


First use

On November 13, 2006, the Department of Justice asserted in a motion[42] with the U.S. Court of Appeals for the Fourth Circuit that, according to the Act, Ali Saleh Kahlah al-Marri should be tried in a military tribunal as an enemy combatant rather than in a civilian court.[43] The document begins with: November 13 is the 317th day of the year (318th in leap years) in the Gregorian Calendar, with 48 days remaining. ... For the Manfred Mann album, see 2006 (album). ... The United States Court of Appeals for the Fourth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts: District of Maryland Eastern District of North Carolina Middle District of North Carolina Western District of North Carolina District of South Carolina Eastern District of... Ali Saleh Kahlah al-Marri is a citizen of Qatar who was arrested while studying in the United States, because the U.S. government classified him as an unlawful combatant. ...

Pursuant to Federal Rule of Appellate Procedure and Local Rule 27(f), respondent-appellee Commander S.L. Wright respectfully moves this Court to remand this case to the district court with instructions to dismiss it for lack of subject matter jurisdiction. Respondent-appellee has conferred with counsel for petitioner-appellant, and they agree with the briefing schedule proposed below. As explained below, the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366 (see Attachment 1), which took effect on October 17, 2006, removes federal court jurisdiction over pending and future habeas corpus actions and any other actions filed by or on behalf of detained aliens determined by the United States to be enemy combatants, such as petitioner-appellant al- Marri, except as provided in Section 1005(e)(2) and (e)(3) of the Detainee Treatment Act (DTA). In plain terms, the MCA removes this Court’s jurisdiction (as well as the district court’s) over al- Marri’s habeas action. Accordingly, the Court should dismiss this appeal for lack of jurisdiction and remand the case to the district court with instructions to dismiss the petition for lack of jurisdiction.

Court challenge

On December 13, 2006, Salim Ahmed Hamdan tried to challenge the MCA's declination of habeas corpus to "alien unlawful enemy combatants" in the United States District Court for the District of Columbia. Judge James Robertson, who ruled in favor of Hamdan in the Hamdan v. Rumsfeld case, refused to rule in favor of Hamdan in this case regarding habeas corpus, writing: December 13 is the 347th day of the year (348th in leap years) in the Gregorian calendar. ... For the Manfred Mann album, see 2006 (album). ... Salim Ahmed Hamdan (born 1970) is a Yemeni, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. ... The United States District Court for the District of Columbia is the United States District Court that hears cases originating in the District of Columbia under Federal law. ... Judge Robertson James Robertson (born 1938) is a judge for the United States District Court for the District of Columbia. ...

"The Constitution does not provide alien enemy combatants detained at Guantanamo Bay with the constitutional right to file a petition for habeas corpus in our civilian courts, and thus Congress may regulate those combatants' access to the courts". [44]

See also

It has been suggested that this article or section be merged with Ghost detainee. ... It has been suggested that this article or section be merged into Extrajudicial prisoners of the United States. ... Holding Military commission to try Plaintiff is illegal and lacking the protections required under the Geneva Conventions and United States Uniform Code of Military Justice. ... Combatants Participants in Operations: United States United Kingdom Australia Canada Netherlands South Korea Poland Greece Armenia Romania Spain Portugal Belgium Norway Italy Germany Ireland Denmark France Bulgaria NATO Pakistan Afghanistan Israel Russia Philippines Indonesia Ethiopia Turkey Saudi Arabia Egypt Iraq Jordan Kurdish forces Djibouti Somalia and others Enemies: al-Qaeda... In common law jurisdictions, habeas corpus, or more precisely habeas corpus ad subjiciendum, is a prerogative writ which requires the addressee to produce in court a person in its custody and justify his or her imprisonment. ...

References

  1. ^ Military Commissions Act of 2006 (as passed by Congress), S.3930, September 22, 2006
  2. ^ "Rushing Off a Cliff", The New York Times, September 28, 2006
  3. ^ [1]Military Commisssions Act of 2006
  4. ^ Army Publishing Directorate, US Army Field Manual, Section 27, Military Justice November 16, 2005
  5. ^ http://thomas.loc.gov/cgi-bin/query/F?c109:3:./temp/~c109IRC4fi:e116721:
  6. ^ [http://www.cato-at-liberty.org/2006/10/02/does-the-military-commission-act-apply-to-us-citizens/ Does the Military Commission Act Apply to U.S. Citizens?], Robert A. Levy, Cato Institute, October 2006
  7. ^ Q and A: Military Commissions Act of 2006, Human Rights Watch, October 2006
  8. ^ Habeas Corpus: Working on Commissions; Andrew Cohen; CBS News; October 19, 2006
  9. ^ Roll call vote, via www.senate.gov.
  10. ^ Roll call vote, via clerk.house.gov
  11. ^ S.Amdt. 5088 to S. 3930, which would have outlawed specific interrogation techniques including waterboarding
  12. ^ thomas.loc.gov
  13. ^ Statement by President Bush, PRNewswire, Source: White House Press Office, September 28, 2006
  14. ^ Statement of Senator John McCain, On the Military Commissions Act, S. 3930, September 28, 2006
  15. ^ Statement of Senator Patrick Leahy, On the Military Commissions Act, S. 3930, September 28, 2006
  16. ^ "Court Told It Lacks Power in Detainee Cases", Washington Post
  17. ^ "Twilight Struggle: Finally Standing Up as the Republic Crashes Down", Chris Floyd
  18. ^ "Library of Congress Copy of the Military Commissions Act 2006", Library of Congress
  19. ^ House Floor Debate on Military Commissions Act
  20. ^ "The legalization of torture and permanent detention", Glenn Greenwald
  21. ^ " The Bush administration's torture of U.S. citizen Jose Padilla"
  22. ^
  23. ^ Bush’s Brave New World of Torture Jennifer Van Bergen, TomPaine.com, November 1, 2006.
  24. ^
  25. ^ Analysis of Proposed Rules for Military Commissions Trials Human Rights First
  26. ^ No-hearing hearings by Mark Denbeaux, Professor, Seton Hall University School of Law and Counsel to two Guantanamo detainees, Joshua Denbeaux, Esq. and David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner Students of Seton Hall University School of Law
  27. ^ Bush's War Crimes Cover-up by by Nat Hentoff, Village Voice, December 8th, 2006
  28. ^ a b Report: Gitmo detainees denied witnesses Lawyer calls legal proceedings ‘shams,’ by The Associated Press, November 17, 2006
  29. ^ Gitmo Justice Is a Joke By Andrew Cohen, Special to the Washington Post, November 30, 2006
  30. ^ a b Our Own Nuremberg Trials by Nat Hentoff, Village Voice, December 17th, 2006
  31. ^ "US Congress gives green light to human rights violations in the 'war on terror'" Amnesty International, September 29, 2006
  32. ^ "Rushing Off a Cliff", The New York Times, September 28, 2006
  33. ^ "Bush signs terror interrogation law", Associated Press
  34. ^ http://www.msnbc.msn.com/id/15318240/
  35. ^ The CIA, the MCA, and Detainee Abuse By JOANNE MARINER, FindLaw, Nov. 08, 2006
  36. ^
  37. ^
  38. ^ The New Detainee Law Does Not Deny Habeas Corpus, Andrew McCarthy, National Review, October 3, 2006
  39. ^ Sending a Message Congress to courts: Get out of the war on terror, John Yoo, Opinionjournal, October 19, 2006
  40. ^ The Military Commissions Act: Congress Commits to the War on Terror; Jeffrey Addicott; JURIST; October 9, 2006
  41. ^ "Court Told It Lacks Power in Detainee Cases", Washington Post
  42. ^ Juris.law.pitt.edu
  43. ^ DOJ asserts MCA bars enemy immigrants, Gitmo detainees from judicial review, Jurist, November 14, 2006
  44. ^ Judge Rejects Detention Challenge of Bin Laden's Driver, Washington Post December 14, 2006

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Government documents

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Media articles/press releases

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