A Summary and Comment on the Military Commissions Act of 2006
  [Passed by U.S. House and Senate]
by Richard Anderson


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Asserting that the Geneva Conventions should be adhered to, Congress bans the use of torture and cruel or inhuman treatment:
    • "PROHIBITED CONDUCT. . . . a 'grave breach of common Article 3’ means . . . (A) TORTURE. -- The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. (B) CRUEL OR INHUMAN TREATMENT. --  The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control. (C) PERFORMING BIOLOGICAL EXPERIMENTS. -- The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons. (D) MURDER. -- The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause."
Congress gives the President the authority to interpret the meaning of the Geneva Conventions, but only regarding those things that are not grave breeches of the Geneva Conventions:
    • [T]he President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register. . . . (C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law,
Congress says that the President is responsible for punishing grave breaches of the Geneva Conventions:
    • "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment . . . The President shall take action to ensure compliance with this subsection . . . The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character."
BUT . . .

Congress provides that anyone working on behalf of the government who tortures, treats cruelly or inhumanly, or even murders an enemy combatant detainee is immune from prosecution in any court of law. No one who commits such an act can ever be convicted of a crime:
    • "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. . . .  [N]o 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."
AND . . .

For incidents occurring before 2005, if there is any dispute about whether a detainees' statements were extracted through torture, a military judge may admit such statements as evidence:

    • "A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.  . . A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would best be served by admission of the statement into evidence. (d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.--A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (2) the interests of justice would best be served by admission of the statement into evidence; and (3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005."

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After a trial by military tribunal has run its course, a convicted detainee can appeal decision:
    • "[T]he United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter. . . . The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28."
BUT . . .

The President, and the executive branch is allowed to keep posession of detainees no matter what the Supreme Court says:
    • "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. . . ."
AND . . .

The President, and those who work for him or her, can still detain people (designated as alien unlawful enemy combatants) forever, without bringing charges:
    • ‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter. . . . The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). . . 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 courtsmartial relating to speedy trial."