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] The bill limits the right of habeas corpus and has been criticized as unconstitutional.

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 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 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:

(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.

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.

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:^[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 combatants, not excluding U.S. citizens. Therefore, there is some controversy over whether this law affects the rights of habeas corpus for United States citizens.

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]

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.

Legislative history

The bill passed the Senate, 65-34, on September 28 2006.^[9]

The bill passed in the House, 250-170-12, on September 29 2006.^[10]

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

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].

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

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.

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." ^[13]

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.^[14]

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”. ^[15]

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^[16].

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. ^[17].

Criticism

Alleged unconstitutionality

A number of legal scholars and Congressional members - including Senate Judiciary Committee Ranking Member 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."^[18]

Another criticism is that the Act violates the Constitution's prohibition against ex post facto laws. Human Rights First stated: "In violation of this fundamental tenet of the rule of law, defendants could be convicted for actions that were not illegal when they were taken." ^[19] Joanne Mariner, an attorney who serves as the Terrorism and Counterterrorism Program Director at Human Rights Watch, described the issue this way:

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 (four 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.^[20]

Law professor John P. Cerone, the co-chair of the American Society of International Law Human Rights Interest Group, adds that the Act "risks running afoul of the principle against ex post facto criminalization, as recognized in international law [(article 15 of the International Covenant on Civil and Political Rights) as] well as US constitutional law."^[21]

The Act may apply to U.S. citizens

In the House debate, Representative David Wu of Oregon offered this scenario:

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.^[22]

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.^[23] 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.^[24] He continues to be held by the United States.

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

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.

As such habeas corpus may be denied to US citizens.^[25] 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 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.^[26]

The Act also suggests 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.^[27]

Patrick Leahy, United States Senator:

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. ^[28].

The Combatant Status Review Tribunals are flawed

Further information: Combatant Status Review Tribunal 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."^[29]

It has been reported by the Seton Hall study "No-hearing hearings" that the 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:^[30][31][32]

• 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.^[32]

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.

With the Military Commissions Act in mind the Washington Post stated:^[33]

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:^[34]

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.

Criminal and Civil Prosecutions

Two provisions of the MCA have been criticized for allegedly making it harder to prosecute and convict officers and employees of the U.S. government for misconduct in office.

First, the MCA changed the definition of war crimes for which U.S. Government defendants may be prosecuted. Under the War Crimes Act of 1996, any violation of Common Article 3 of the Geneva Conventions was considered a war crime and could be criminally prosecuted. Section 6 of the Military Commissions Act amended the War Crimes Act so that only actions specificly defined as "grave breaches" of Common Article 3 could be the basis for a prosecution, and it made that definition retroactive to November 26, 1997. The specific actions defined in section 6 of the Military Commissions Act include torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and the taking of hostages. According to Mariner, of Human Rights Watch, the effect is "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."^[35] The Center for Constitutional Rights adds:

The MCA’s restricted definitions arguably would exempt certain U.S. officials who have implemented or had command responsibility for coercive interrogation techniques from war crimes prosecutions.
. . . .
This amendment is designed to protect U.S. government perpetrators of abuses during the "war on terror" from prosecution.^[36]

In 2005, a provision of the Detainee Treatment Act (section 1004(a)) had created a new defense as well as a provision to providing council for agents involved in the detention and interrogation of individuals “believed to be engaged in or associated with international terrorist activity”. The 2006 MCA amended section 1004(a) of the Detainee Treatment Act to guarantee free council in the event of civil or criminal prosecution and applied the above mentioned legal defense to prosecutions for conduct that occurred during the period September 11, 2001 to December 30, 2005. Although the provision recognizes the possibility of civial and or criminal proceedings, the Center for Constitutional Rights has criticised this claiming that "The MCA retroactively immunizes some U.S. officials who have engaged in illegal actions which have been authorized by the Executive." ^[37]

On other grounds

Amnesty International said that the Act "contravenes human rights principles."^[38] and 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."^[39] While 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." ^[40]

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."^[41]

Nat Hentoff opined in the Village Voice that

conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush and Hamdan v. Rumsfeld

makes US government officials culpable for war crimes.^[34]

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.^[42]

First use

On November 13, 2006, the Department of Justice asserted in a motion^[43] 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.^[44] The document begins with:

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.

Initial prosecutions

Of the first three war crimes cases brought against Guantanamo Bay detainees under the MCA, one resulted in a plea bargain and the two others were dismissed on jurisdictional grounds.

The first person prosecuted under the MCA was David Matthew Hicks, an Australian. His case ended in March 2007 with his plea of guilty and his sentence to nine months' imprisonment, to be served in Australia.^[45]

On June 4, 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of Omar Khadr, a Canadian who had been designated as an "enemy combatant" in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002. Colonel Peter Brownback ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr.^[46] Also on June 4, Captain Keith J. Allred reached the same conclusion in the case of Salim Ahmed Hamdan.^[47]

The United States Department of Defense responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures." That position was called "dead wrong" by Specter.^[48]

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:

"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. U.S. On June 29, 2007, the court reversed that decision, releasing an order that expressed their intent to hear the challenge. The two cases will be consolidated into one and will be heard during the court's next term, which starts in October 2007. ^[50]

See also

• Amnesty law
• Extrajudicial prisoners of the United States
• Ghost detainee
• War on Terrorism
• Writ of habeas corpus

•  • [ e] War on Terrorism

Military conflicts Major terrorist attacks and plots Related articles Participants in operations Targets of operations Operation Enduring Freedom (October 2001 – current) War in Afghanistan (Oct 2001 – current) OEF - Philippines (January 2002 – current) Georgia Train and Equip Program (February 2002 – current) OEF - Horn of Africa (October 2002 – current) OEF - Trans Sahara (February 2007 – current) Algeria (2002 – current) Iraq War (March 19 2003 – current) Insurgency in Saudi Arabia (May 12 2003 – current) Waziristan War (March 2004 – current) South Thailand insurgency (November 7 2004 - current) Lebanon War (July 12 2006 – August 14) War in Somalia (December 20 2006 – current) Lebanon-Fatah al-Islam conflict (May 20 2007 - September 3 2007) 2001: September 11, 2001 attacks 2001 anthrax attacks Shoe bomb plot (December 22) 2002: Terrorism in Pakistan (February 2002 – current) Terrorism in Indonesia 1st Bali bombing (October 12) 2003: Casablanca bombings (May 16) Marriott Hotel bombing (August 5) Istanbul bombings (November 15 and November 20) 2004: Madrid train bombings (March 11) Jakarta Australian embassy bombing (September 9) 2005: 1st London bombings (July 7) 2nd London bombings (July 21) 2nd Bali bombings (October 1) Amman bombings (November 9) 2006: Mumbai train bombings (July 11) Transatlantic aircraft plot (August 9) 2007: Algiers bombings (April 11) Fort Dix plot and JFK Airport plot (May 7 and June 3) London car bomb plot and Glasgow Airport attack (June 29 and June 30 respectively) Timeline Casualties Theaters Criticism Abu Ghraib prison Axis of Evil CIA run Black sites Combatant Status Review Tribunal Extrajudicial prisoners of the US Extraordinary rendition Guantanamo Bay detention camp Guantanamo military commission Military Commissions Act of 2006 NSA call database NSA electronic surveillance program Protect America Act of 2007 Unitary executive theory Unlawful combatant USA PATRIOT Act Afghanistan Northern Alliance Australia Canada Denmark Ethiopia France Germany India Indonesia ISAF Iraq (New Iraqi Army) Italy Israel South Korea NATO Netherlands Pakistan Philippines Poland Romania Saudi Arabia Spain Thailand Turkey United Kingdom United States al-Qaeda Abu Sayyaf Iraqi insurgency Hezbollah Hamas Islamic Courts Union Jemaah Islamiyah Taliban Muslim Brotherhood Pattani Separatists Jaish-e-Mohammed Hizbul Mujahideen Kurdistan Workers Party Islamic Movement of Uzbekistan Lashkar-e-Toiba and others

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. ^ [2]
6. ^ Levy, Robert A. (2006-10-02). Does the Military Commission Act Apply to U.S. Citizens?. Cato-at-liberty. Cato Institute. Retrieved on 2007-05-23.
7. ^ Q and A: Military Commissions Act of 2006. Human Rights Watch (October 2006). Retrieved on 2007-05-23.
8. ^ Cohen, Andrew (2006-10-19). Habeas Corpus: Working on Commissions. Couric & Co. CBS News. Retrieved on 2007-05-23.
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. ^ The New Detainee Law Does Not Deny Habeas Corpus, Andrew McCarthy, National Review, October 3, 2006
14. ^ Sending a Message Congress to courts: Get out of the war on terror, John Yoo, Opinionjournal, October 19, 2006
15. ^ The Military Commissions Act: Congress Commits to the War on Terror; Jeffrey Addicott; JURIST; October 9, 2006
16. ^ Statement by President Bush, PRNewswire, Source: White House Press Office, September 28, 2006
17. ^ Statement of Senator John McCain, On the Military Commissions Act, S. 3930, September 28, 2006''
18. ^ "Court Told It Lacks Power in Detainee Cases", Washington Post
19. ^ Analysis of Proposed Rules for Military Commissions Trials. Human Rights First (2007). Retrieved on 2007-05-30.
20. ^ Mariner, Joanne (Oct. 9, 2006). The Military Commissions Act of 2006: A Short Primer. FindLaw. Retrieved on 2007-05-30.
21. ^ Cerone, John P. (November 13, 2006). The Military Commissions Act of 2006:Examining the Relationship between the International Law of Armed Conflict and US Law. American Society of International Law. Retrieved on 2007-05-30.
22. ^ House Floor Debate on Military Commissions Act
23. ^ "The legalization of torture and permanent detention", Glenn Greenwald
24. ^ " The Bush administration's torture of U.S. citizen Jose Padilla"
25. ^

• Challenging the Military Commissions Act, Jurist, October 04, 2006
• The Military Commissions Act of 2006: A Short Primer - Part One of a Two-Part Series By JOANNE MARINER, FindLaw, Oct. 09, 2006
• Thoughts on the "Bringing Terrorists to Justice Act of 2006" John Dean, FindLaw,Sep. 22, 2006
• Does the Military Commissions Act apply to citizens? Balkinization, September 29, 2006
• Detainee Bill Shifts Power to President By Scott Shane and Adam Liptak, The New York Times, September 30, 2006

26. ^ Bush’s Brave New World of Torture Jennifer Van Bergen, TomPaine.com, November 1, 2006.
27. ^

• Challenging the Military Commissions Act, Jurist, October 04, 2006
• Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely Balkinization, September 27, 2006
  28. ^ Statement of Senator Patrick Leahy, On the Military Commissions Act, S. 3930, September 28, 2006''
  29. ^ Analysis of Proposed Rules for Military Commissions Trials Human Rights First
  30. ^ 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
  31. ^ Bush's War Crimes Cover-up by Nat Hentoff, Village Voice, December 8th, 2006
  32. ^ Report: Gitmo detainees denied witnesses Lawyer calls legal proceedings ‘shams,’ by The Associated Press, November 17, 2006
  33. ^ Gitmo Justice Is a Joke By Andrew Cohen, Special to the Washington Post, November 30, 2006
  34. ^ Our Own Nuremberg Trials by Nat Hentoff, Village Voice, December 17th, 2006
  35. ^ Mariner, Joanne (Oct. 25, 2006). The Military Commissions Act of 2006: A Short Primer (Part Two). FindLaw. Retrieved on 2007-06-03.
  36. ^ Center for Constitutional Rights. Military Commissions Act of 2006: A Summary of the Law (PDF). Retrieved on 2007-06-03.
  37. ^ Center for Constitutional Rights. Military Commissions Act of 2006: A Summary of the Law (PDF). Retrieved on 2007-06-02.
  38. ^ "US Congress gives green light to human rights violations in the 'war on terror'" Amnesty International, September 29, 2006
  39. ^ "Rushing Off a Cliff", The New York Times, September 28, 2006
  40. ^ "Bush signs terror interrogation law", Associated Press
  41. ^ [3]
  42. ^ "Court Told It Lacks Power in Detainee Cases", Washington Post
  43. ^ Juris.law.pitt.edu
  44. ^ DOJ asserts MCA bars enemy immigrants, Gitmo detainees from judicial review, Jurist, November 14, 2006
  45. ^ Hicks sentenced to nine months. News.com.au. March 31, 2007
  46. ^ Koring, Paul (2007), "U.S. case against Khadr collapses", Toronto Globe and Mail, <[4]
  47. ^ Glaberson, William (June 5, 2007), "Military Judges Dismiss Charges for 2 Detainees", The New York Times, <[5]
  48. ^ Glaberson, William (June 5, 2007), "Military Judges Dismiss Charges for 2 Detainees", The New York Times, <[6]
  49. ^ Judge Rejects Detention Challenge of Bin Laden's Driver, Washington Post December 14, 2006
  50. ^ High Court to Hear Terror Detainee Case, Washington Post June 29, 2007
  

External links

Government documents

• Military Commissions Act of 2006 (as passed by Congress), S.3930, September 22, 2006
• Roll call votes:
• Senate:65-34
• House: 250-170-12
• H.R.6054, House version of the Bill, which was not enacted
• Military Commissions Act of 2006 (proposed), text of Bill, hosted at Georgetown Law website.
• Cost Estimate, H.R. 6054, Congressional Budget Office, as ordered reported by the United States House Committee on Armed Services, September 15, 2006
• Full Committee Markup, H.R. 6054, United States House Committee on Armed Services, September 13, 2006, Chairman: Duncan Hunter
• WashingtonWatch.com page on H.R. 6054: The Military Commissions Act of 2006

Media articles/press releases

• The Christian Science Monitor: Will the Supreme Court shackle new tribunal law?
• Senate Passes Bill on Detainee Interrogations, Washington Post, September 29, 2006; Page A01.
• Statement by President Bush, PRNewswire, Source: White House Press Office, September 28, 2006
• WILEY RUTLEDGE, EXECUTIVE DETENTION, AND JUDICIAL CONSCIENCE AT WAR, By Craig Green, 2006

Commentary

• Beginning of the end of America, Keith Olbermann, October 19, 2006
• The Military Commissions Act: Congress Commits to the War on Terror, JURIST, October 9, 2006
• Military Commissions Act of 2006 – Turning bad policy into bad law, Amnesty international, September 29, 2006
• A Case for Delaying Military Commissions Legislation, JURIST, September 27, 2006
• History Starts Today: The Perils of Habeas-Stripping, JURIST, September 26, 2006
• 'All the Laws But One': Parsing the Military Commissions Bill, JURIST, September 25, 2006
• How the Compromise Detainee Legislation Guts Common Article 3, JURIST, September 25, 2006
• Habeas Corpus: A Vital Tool in the War on Terror
• The Day King George Was Crowned..., Olbermann, October 17, 2006
• Olbermann on the Murder of Habeas Corpus, Olbermann, October 10, 2006
• Military Commissions Act 2006—Unchecked Powers?, Globalissues.org
• The Military Commissions Act of 2006 - ARIwatch web site critical of the Military Commissions Act
• 2006 Going on 1984, Benjamin Dunphy, The Pacifican

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