Military Commissions Act of 2006

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The Military Commissions Act of 2006 is a U.S. law that authorizes trial by military commissions. It was enacted to regularize some of the process of charges against persons captured and considered enemy combatants. [1]

It defines, for U.S. purposes, an "unlawful enemy combatant" "as a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces) or a 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." Competent tribunal is a term used in Article 5 of the Third Geneva Convention. There is controversy if the tribunals defined by this Act are in full compliance with that Article.

Office of Military Commissions

Military Commissions are under the authority of Susan Crawford, a retired judge and Department of Defense attorney. Appointed by the Bush Administration, she has rejected some of its positions, specifically the military prosecution of Mohammed al-Qahtani, because the evidence was tainted by torture.[2]

BG Thomas W. Hartmann, U.S. Air Force, had been heading the process prior to her appointment, when he was named her legal advisor. CAPT Keith J. Allred, U.S. Navy, barred him, in mid-2008, from further participation in the hearings, ruling that he was biased toward convictions; Air Force COL Morris D. Davis, chief prosecutor, had complained that Hartmann, according to the New York Times, "interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture." [3]

George W. Bush Administration

In Executive Order 13440, President George W. Bush reaffirmed, in July 2007, his determination:[4] "that the Military Commissions Act of 2006 defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions." He approved CIA programs that:[4]

  • Do not torture, as defined by 2340 of title 18USC2340 or constitute other acts defined by 18USC2441
  • Violate the Military Commissions Act of 2006 or the Detainee Treatment Act
  • Are applied to an alien detainee, who is determined, by the Director of the Central Intelligence Agency (DCIA) "to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and [is] likely to be in possession of information that:
    • could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
    • could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces"
  • Are determined, by the DCIA, "based upon professional advice, to be safe for use with each detainee with whom they are used
  • Provide detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.

In July of 2006, in its ruling in Hamdan v. Rumsfeld, the United States Supreme Court overturned the Presidentially authorized military commission. The Supreme Court ruled that only the United States Congress had the authority to authorize military commissions.

Authorization

In the fall of 2006 the United States Congress passed the Military Commissions Act of 2006. It authorized military commissions that were very similar to the Presidentially authorized military commissions.

Conduct of commissions

David Hicks, Salim Ahmed Hamdan and Omar Khadr were the first three men to face charges before the Congressionally authorized military commissions. Hicks arranged to plead guilty to his charges in a plea bargain in March of 2007.

On June 4th, 2007 Peter Brownback and Keith Allred, the two officers presiding over Khadr and Hamdan's military commissions threw out all the charges on jurisdictional grounds. They ruled that since Khadr and Hamdan had only been determined to be "enemy combatants". and that the Military Commissions Act only authorized them to try "unlawful enemy combatants", they lacked the authority to try the two men.

The Department of Defense set up a court of appeal for the military commissions, and appealed their rulings. The court of military appeal ruled that Brownback and Allred were wrong to dismiss the charges, that they themselves had the authority to determine that Khadr and Hamdan were "unlawful" combatants.

In October of 2007 the press learned that Khadr and Hamdam's Prosecution and Defense were communicating with the judges over e-mail over matters that would have been communicated on papers in a court of law. This new information triggered criticism that the military commissions were not measuring up to the Bush Presidency's claims that they were open and transparent.

Obama Administration

When announcing the decision to try the five most prominent 9-11 Attack suspects, Attorney General Eric Holder, in November 2009, said that while U.S. v. Khalid Sheikh Mohammed, et al. would be held in the U.S. District Court for the Southern District of New York, five other defendants would still go before military commissions.[5] No decision on trying a number of other prisoners at Guantanamo has been announced.

References