Military Commissions Act of 2006

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 court-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 used in Article five of the third Geneva Convention.[5] However, the rights guaranteed by the third Geneva Convention to lawful combatants are expressly denied to unlawful military combatants for the purposes of this Act by Section 948b (see above).

"Any alien unlawful enemy combatant is subject to trial by military commission under chapter 47A — Military Commissions (of the Military Commissions Act of 2006 (10 U.S.C. 948a (Section 1, Subchapter I) Archived September 18, 2008, at the Wayback Machine)). The definition of unlawful and lawful enemy combatant is given in Chapter 47A—Military commission: Subchapter I--General provisions: Sec. 948a. Definitions Archived January 17, 2016, at the Wayback Machine

The term 'unlawful enemy combatant' means —

(i) 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-Qaida, or associated forces); or

(ii) 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.

... The term 'lawful enemy combatant' means a person who is —

(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) 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

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."

— Law No: 109-366 (summary)

The Act also defines an alien as "a person who is not a citizen of the United States", and a co-belligerent to mean "any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy."

The Act changes pre-existing law to forbid explicitly 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.

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.

These provisions are as follows:[6]

(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.

Among other things, the MCA created the position of Chief Defense Counsel (United States).

In Boumediene v. Bush (2008), the US Supreme Court held that the MCA was unconstitutional as it restricted detainees' use of habeas corpus and access to the federal courts. It determined that detainees could have access to federal courts to hear habeas corpus petitions, to restore the protection of the Constitution.

There is a controversy over whether this law affects the rights of habeas corpus for United States citizens.

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", section 948a refers to "unlawful enemy combatants" (not explicitly excluding US citizens).

Cato Institute legal scholar Robert A. Levy writes that the Act denies habeas rights only to aliens, and that US citizens detained as "unlawful combatants" would still have habeas rights with which to challenge their indefinite detention.[8] 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-US citizens including all legal aliens.[9] CBS legal commentator Andrew Cohen, commenting on this question, 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."[10]

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 criticism.

The bill, S. 3930, passed the Senate, 65–34, on September 28, 2006.[11]

The bill passed in the House, 250–170–12, on September 29, 2006.[12]

Bush signed the bill into law on October 17, 2006.

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.

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."[15]

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 US and refused to interpret the Geneva Conventions to give rights in civilian court against the government.[16]

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".[17]

George W. Bush, President of the United States:

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.[18]

John McCain, United States Senator:

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.[19]

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.[21]

On December 13, 2006, Salim Ahmed Hamdan challenged 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:

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.[49]

In April 2007, the Supreme Court declined to hear two cases challenging the MCA: Boumediene v. Bush and Al Odah v. United States. On June 29, 2007, the court reversed that decision, releasing an order that expressed their intent to hear the challenge. The two cases have been consolidated into one.[50] Oral arguments were heard on December 5, 2007. The decision, extending habeas corpus rights to alien unlawful enemy combatants but allowing the commissions to continue to prosecute war crimes, was handed down on June 12, 2008.[51][52]

Even though detainees now have the right to challenge the government's basis of their detention, that does not guarantee release as evidenced by the Dec 14th, 2009 ruling of U.S. District Judge Thomas F. Hogan who upheld continued detention of Musa'ab Al-Madhwani in Guantanamo Bay, Cuba even though the court determined that he was not a continuing threat, the government met its burden of proving he was a member of al-Qaeda.[53]