A Summary and Comment on the
Military Commissions Act of 2006
[Passed by U.S. House and Senate]
by Richard Anderson
---------- (1) ----------
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."
---------- (2) ----------
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."