Detainee Treatment—Military Commissions Act of 2006 Cleared for Whitehouse

The contentious and controversial Military Commissions Act of 2006 [hereinafter MCA],^[1] designed to try terrorism suspects, has been approved by both houses of Congress, and it has been sent to the President for his signature. What is in the 38-page bill, however, is quite amorphous and potentially unconstitutional. Most traditional news outlets noted that the bill would presumably “prohibit some of the worst abuses of detainees such as mutilation and rape, but grant the president leeway to decide which other interrogation techniques are permissible.”^[2] Some of the more concerning provisions of the legislation, such as the suspension of habeas corpus, are typically buried in most news articles, or not mentioned at all.^[3]

Therefore, it makes sense to actually look at some of the legislation and see what it really says.

It amends title 10 of the United States Code by inserting Chapter 47A after Chapter 47.^[4] The new 10 U.S.C. § 948a defines an “unlawful enemy combatant” as a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or a 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.^[5] This definition is easily broad enough to allow a United States citizen to be designated an unlawful enemy combatant. A “co-belligerent” means “any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.”^[6] A “lawful enemy combatant,” on the other hand, means a person who is a member of the regular forces of a State party engaged in hostilities against the United States; a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.^[7]

Torture is a triable offense under the MCA, and it is described, much as it is defined in 18 U.S.C. § 2340(1). Under the MCA torture is “an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.”^[8] The term “severe mental pain or suffering” has the meaning found in 18 U.S.C. § 2340(2), which defines it as the prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Furthermore, under the MCA, no person is allowed to invoke the Geneva Conventions or any protocols of the Geneva conventions “in any habeas corpus or other civil action or proceeding.”^[9] And, as mentioned, “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions.”^[10]

The Constitutional right to petition for a writ of habeas corpus is abridged by this legislation, which states that “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.”^[11] Many people will point to the clause “by or on behalf of an alien” as some sort of proof that the constitution is not really violated, but aliens receive protection under the Constitution all the time.

Finally, as CNN’s Jack Cafferty^[12] and the Chicago Tribune^[13] have pointed out, the MCA also “shields US officials from prosecution under the War Crimes Act” retroactively to September 11, 2005.^[14] The provision that does this, however, is not explicitly elucidated. Section 8 of the MCA states that section 1004 of the Detainees Treatment Act of 2005 (42 U.S.C. § 2000dd-1) shall apply with respect to any criminal prosecution that relates to the detention and interrogation of aliens; is ground in 18 U.S.C. § 2441(c)(3) (War Crimes); and relates to actions occurring between September 11, 2001, and December 30, 2005.^[15] Section 2000dd-1 creates good-faith immunity beginning on December 30, 2005.^[16]

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[1] S. 3930.
[2] See, e.g., Anne Plummer Flaherty, Senate Approves Bill on Detainee Treatment, AP (via Birmingham News), Sep. 29, 2006.
[3] See, e.g., id. at 2.
[4] S. 3930 § 3(a).
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 28 (new 10 U.S.C. § 950v(b)(11)(A)).
[9] Id. § 5.
[10] Id. § 6(a)(3)(A).
[11] Id. § 7(a).
[12] See Video: Cafferty: “What Are We Becoming?” (CNN (via YouTube) Sep. 29, 2006).
[13] See Richard Simon and Julian E. Barnes, House OKs Tribunal Bill, Chicago Tribune, Sep. 28, 2006.
[14] Id.
[15] S. 3930, § 8(b).
[16] Se 42 U.S.C. § 2000dd-1(a).