Signed into law on October 17, 2006
On September 6, 2006, President Bush launched a new initiative on U.S. detention policy. Part of the President’s initiative took the form of legislation that the President sent to Congress. The legislation, entitled the Military Commissions Act of 2006 (or the “Act”), enables the President to establish military commissions, and sets out what procedural guarantees the commissions will have. Separately, the legislation clarifies standards of treatment for captured unlawful enemy combatants, so that U.S. personnel have clear rules about how to lawfully question and obtain intelligence from them.
Various key members of the Senate (Senators McCain, Warner, and Graham) favored a different approach as to certain aspects of the President’s bill, but shared the President’s view that the military commissions and any interrogation standards must comply with the Geneva Conventions. The Administration worked with these Senators and others in Congress to reach compromise language in the bill. The Senate and House passed this compromise bill in late September and the President signed it into law on October 17, 2006.
The Act provides for military commissions and interrogation/treatment standards that are fully consistent with the Geneva Conventions, and in particular “Common Article 3.” Common Article 3 is an article that is common to all four 1949 Geneva Conventions and applies to non-international armed conflicts. Common Article 3 prohibits, among other things, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” the “taking of hostages,” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” It also requires that trials be held by “regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Substance of the Act
The legislation establishes military commission procedures for trying alien unlawful enemy combatants, including members of al Qaeda, in a way that fully complies with Common Article 3 of the Geneva Conventions, which the Supreme Court has said applies to the conflict with al Qaeda.
The legislation incorporates numerous due process safeguards for defendants, including the following:
o An extensive appeals process, which includes the right of any defendant to appeal a final military commission judgment against him to a U.S. federal appeals court.
o A right to be present throughout the trial. Evidence admitted against an accused must be shared with the accused.
o A presumption of innocence.
o A right to represent oneself.
o A right to cross-examine prosecution witnesses.
o A prohibition on double jeopardy.
o An absolute bar on the admission of statements obtained through torture.
o A bar on coerced testimony unless the judge finds it probative and reliable, and finds that the interests of justice would be best served by admitting the statement. For statements made after the Detainee Treatment Act was enacted, the judge must also find that it was not obtained through cruel, inhuman or degrading treatment or punishment.
o A prohibition against compelling a defendant to testify against himself.
o Access to counsel, including a qualified military defense counsel provided at no cost and the opportunity to retain a civilian defense counsel who meets certain requirements.
The legislation criminalizes serious violations of Common Article 3, and in so doing defines those terms. This will give greater clarity to U.S. officials who work in detention and interrogation operations. Acts that are defined criminal offenses under the draft legislation include “torture,” “cruel or inhuman treatment,” “performing biological experiments,” “murder,” “mutilation or maiming,” “intentionally causing serious bodily injury,” “rape,” and “sexual assault or abuse.” The legislation’s definitions of these offenses are consistent with international law.
The legislation does not authorize torture or harsh interrogation techniques that would otherwise be prohibited by U.S. law or U.S. treaty obligations. As the President has stated on numerous occasions, the United States does not engage in or condone torture anywhere.
• The Act does not provide absolute immunity for any individual, including those working for or with our intelligence agencies. Anyone who has committed a crime while interrogating detainees may be prosecuted under criminal law, including the torture statute or the War Crimes Act.
• The legislation cuts off habeas review (a specific and limited form of review generally available to prisoners in our civilian justice system). However, the legislation preserves an unlawful combatant’s right to appeal to our federal courts a Combatant Status Review Tribunal decision that he is an enemy combatant. This right serves a similar function to habeas and exceeds United States obligations under international law. The bill also explicitly provides that unlawful enemy combatants have the right to challenge their convictions in our federal courts.
• The legislation does not reinterpret or change the meaning of Common Article 3 of the Geneva Conventions. The President and Congress share the view that the military commissions and any interrogation standards must comply with Common Article 3 and cannot constitute cruel, inhuman, or degrading treatment or punishment.