The Future of the Military Commissions Act

On October 17, President Bush signed into law the Military Commissions Act Of 2006. The law grants the president far-reaching powers to detain persons indefinitely, without normal judicial oversight, allows for a flexible interpretation and application of the Geneva Conventions in U.S. interrogation practices and strips the rights of habeas corpus from detainees classified as enemy combatants.

Following the Supreme Court’s decision in Hamdan vs. Rumsfeld, which ruled that the military commissions established by the administration to try detainees violated the Geneva Conventions and military law, the president sought legislation that would establish a legal framework to legitimize his controversial commissions. In September, the House passed the Military Commissions Act by a vote of 253 – 168. The Senate agreed to it soon after, with a 65-34 vote.

The negative implications of the Military Commissions Act are far reaching, and debate over the law’s legality has been heated. In a statement opposing the Act, Senator Russ Feingold (D-WI) argued that the trials conducted under this legislation would not send a very positive signal of the U.S. to the world. Feingold also pointed out that the act falls short of clarifying basic procedures for treatment of detainees, leaving open the possibility of using torture in interrogation practices.

According to the New York Times, in an article published September 29, 2006, the law permits the president to detain enemies, imprison them indefinitely and interrogate them outside of the reach of full court reviews customarily given to ordinary prisoners. The legislation gives the president sole authority to widely interpret the meaning and application of the Geneva Conventions and international law pertaining to interrogation techniques used on detainees.

What has alarmed many is a provision within the bill that strips the right of habeas corpus for those classified as enemy combatants. The Military Commissions Act states that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus…” for an enemy combatant. Habeas corpus, a fundamental right in common law countries, allows an individual held in custody to challenge unlawful imprisonment.

Still, many lawmakers have already promised changes to the law in the next session of Congress, which begins in January. Their goals are to clarify the act’s more ambiguous provisions, reinstate habeas corpus rights, and establish greater oversight of interrogation techniques.

Senator Chris Dodd (D-CT) was the first lawmaker to formally seek revisions to the law. He introduced a bill (S.4060) on November 16th to “improve and enhance due process and appellate procedures” of the Military Commissions Act. It was referred to the Senate Armed Services Committee but will not be voted on this session.

House legislators have also indicated that they will attempt to institute major changes to the law. Representative Neil Abercrombie (D-Hawaii), who sits on the armed services committee, pledged to take up “the issue surrounding military commissions” at the first legislative opportunity.

Congress also hope to increase transparency of military commissions by initiating investigations into internal White House memos and Department of Justice memos outlining interrogation techniques.

Updated November 29, 2006