Overview of the Military Commissions Act of 2006

Here’s a quick-and-dirty overview of the MCA bill, for those who have no time for a closer read.

§ 1 – Title

§ 2 – Findings

§ 3 – Authorization for Military Commissions: this section gives the President authority to constitute military commissions in keeping with the parameters set forth below

§ 4 – Military Commissions: This section would add Chapter 47A (“Military Commissions”) to Title 10 of the U.S. Code. Here are some highlights:

- MCs available only for noncitizens categorized as “unlawful enemy combatants” (UEC)

- UEC’s defined as any person found by POTUS or SecDef:

“(A) to be part of or affiliated with a force or organization – including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces – engaged in hostilities against the United States or its co-belligerents in violation of the laws of war;

(B) to have committed a hostile act in aid of such a force or organization so engaged; or

(C) to have supported hostilities in aid of such a force or organization so engaged.” In contrast, “lawful enemy combatant” is defined largely with reference to the criteria for obtaining POW status set forth in Article 4.A of GPW.

- Defendant rights and other trial matters of note:

(a) no detainee may be required to testify against himself at a commission proceeding, not are statement extracted by torture admissible against a detainee, but coerced statements may be admitted unless “the military judge finds that the circumstances under which the statement was made render it unreliable or lacking in probative value.”

(b) Rules of evidence: simply put, whether “the evidence would have probative value to a reasonable person.”  “Hearsay evidence is admissible, unless the military judge finds that the circumstances render it unreliable…”  Rule 403 also makes an appearance, with the judge required to exclude evidence when its probative value is substantially outweighed by offsetting concerns.

(c) Exclusion of the detainee-defendant: “The military judge may . . . permit the admission . . . of classified information outside the presence of the accused.”  (p.31)  To do this, the judge must find “extraordinary circumstances” in that exclusion is needed to “protect classified information the disclosure of which to the accused could reasonably be expected to cause identifiable damage to the national security . . . “, or to protect an individual’s physical safety; or to prevent disruption of the proceedings by the accused. The accused should not be excluded if doing so would deprive him of a full and fair trial. (p.32)  The judge also must find that “admission of an unclassified summary or redacted version of that evidence would not be an adequate substitute and, in the case of testimony, alternative methods to obscure the identity of the witness are not adequate. (p. 33)  Military defense counsel is never to be excluded, however.  Civilian defense counsel may remain, subject to certain limits.  In any event, no defense counsel can disclose such evidence to the accused (p.34-35). And notwithstanding all this, the accused must be present if his own statement is being introduced. (35)

- Initial appellate review is to the newly-created Court of Military Commission Review, but is limited to legal issues. (56-57)  Then review goes to the DC Circuit, and on to SCOTUS as needed.

- Substantive offenses (described as a codification of existing offenses triable by military commission, not the creation of new offenses) (62): These range widely, but the most interesting ones are

   - “providing material support for terrorism (ala 18 USC 2339A and 2339B) (p. 74) “material support” is defined with reference to the criminal law definition at 18 USC 2339A(b), which is to say broadly enough to include the provision of    one’s own self as “personnel” to a terrorist organization.

  - conspiracy (a plurality but not a majority of the court in Hamdan had rejected the view that conspiracy can be punished as a violation of the laws of war).

§ 5 – Judicial Review

- Here we go again.  This section would again amend the habeas statute (28 USC 2241) to preclude all courts from hearing any claims “pending on or filed after the date of the enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement,” other than via the DC Circuit procedure created by the Detainee Treatment Act (for challenges to the decisions of Combatant Status Review Tribunals and Military Commissions). Note that this undue the statutory interpretation aspect of Hamdan regarding the DTA, and also would expand the jurisdiction-limiting effect of the DTA beyond GTMO detainees. Note too that § 6 specifically authorizes the court (presumably the DC Circuit) to consider classified information on an ex parte, in camera basis during any such review. (p.78)

§ 6 – Satisfaction of Treaty Obligations

- Section 6 provides that if detainees are treated in conformity with the McCain Amendment, this counts as satisfaction of CA3 standards for detention and treatment as well.

- More significantly, perhaps, § 6(b) specifies that “No person in any habeas action or any other action may invoke the Geneva Conventions or any protocols thereto as a source of rights, whether directly or indirectly, for any purpose in any court of the United States . . . .”  Note that this would take the Conventions off the table as an issue for the DC Circuit (and SCOTUS) to consider pursuant to a DTA-based review of a CSRT or military commission determination.

§ 7 – War Crimes Act Amendment

- Section 7 would amend the War Crimes Act (18 USC 2441) by creating a specific list of acts that would constitute a prosecutable violation of CA3, including (1) torture, (2) “Cruel or Inhuman Treatment”  (not degrading treatment or outrages upon personal dignity, at least not explicitly); performing biological experiments; murder; mutilation or maiming; “intentionally causing great suffering or injury” (defined to refer to “bodily injury”); rape; sexual assault or abuse; and taking hostages.

§ 8 – Conforming Amendments

§ 9 – Retroactive Application (“This Act . . . shall apply retroactively . . . to any claim or cause of action pending on or after the date of the enactment of this Act.”) (p.86)

§ 10 – Severability

Whew.

Comments

[Tung Yin]

Regarding the re-amendment of the habeas statute, it should be interesting to see the debates about whether this represents Congress's original intent of the DTA, or revisionist history. It does seem to me that if this bill passes by largely the same vote as the DTA, it would be something of validation of Justice Scalia's dissent.

[Bobby Chesney]

Certainly the MCA draft goes out of its way to eliminate any argument on the retroactivity point. This will then pave the way for debate regarding the habeas suspension issue, I suppose.

One aspect of the draft that is particularly interesting is found on p.15, in the proposed 10 USC 948b (rules of construction). Section 948b(d) declares that the commissions described in the MCA satisfy the "regularly-constituted court" standard of Common Article 3. Will that bind a reviewing court in the inevitable "Hamdan II"?

[Steve Vladeck]

Bobby -- That, of course, begs the question whether Congress can authoritatively interpret a treaty by statute, no?

[fdelondras]

Is it just me or is the Administration actually inviting SCOTUS to find that Guantanamo Detainees have constitutional rights??

[Alan G. Kaufman]

My thought is that this tribunal legislation should be designed to accomplish three strategic purposes:

1. Keep captured non-state unlawful combatants off of the long war battlefield and out of the fight for its duration.
2. Deter noncompliance with the law of war by trial and punishment for its violation.
3. Reinforce US strategic objectives in spreading American values with respect to the rule of law and principles of democratic government.

As currently written, and as implicitly discussed by the uniformed military Judge Advocates General in their Senate Judiciary Committe testimony, it would accomplish none of these three objectives well, and would undermine the third.

Thoughts?

[Anderson]

but coerced statements may be admitted “if the military judge finds that the circumstances under which the statement was made render it unreliable or lacking in probative value.”

An "unless" seems to have fallen out here, as those are presumably just the statements which would be INadmissible. Unless the bill is even more horrible than it seems?