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The Military Commissions Act of 2006

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Nepali Torture Victim

A victim of torture at the hands of the Nepali government.

Image courtesy of the U.S. Agency for International Development.

The Big Question:

How much latitude should the executive branch be given with regard to how it arrests, detains, and interrogates alleged terrorists?

How the Bill Was Passed:

In September 2006, right before the midterm elections recess, the House and Senate passed legislation dealing with the treatment of detainees in the Bush administration's counterterrorism policy initiatives.

Why the Bill Was Proposed:

In June 2006, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld (2006) that existing Bush administration policies regarding the treatment of detainees were unconstitutional. Two concurring justices, Breyer and Kennedy, expressed that they would be willing to support some of the Bush administration's policies if they were authorized by Congress.

Changing the Constitution?:

Critics of the bill charge that it changes the Constitution. It does not, and cannot, do this. Although the bill is poorly written, it can only be enforced in a manner consistent with the framework established by the Constitution as expressed in prior U.S. Supreme Court rulings, most notably Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).

U.S. Citizens as Enemy Combatants?:

Critics also argue that Section 2 of the act makes no explicit statement that U.S. citizens may not be designated as enemy combatants, a category of prisoner that does not receive the same level of rights as civilian or traditional military prisoners. But as the Supreme Court highlighted in Hamdi v. Rumsfeld (2004), all U.S. citizens--whether they are designated enemy combatants or not--are protected by the Bill of Rights.

No Geneva Conventions?:

Critics argue that the bill withdraws the United States from the Geneva Conventions. In truth, the bill does not change our treaty status vis-a-vis the Conventions, though it does shield executive branch officials from liability in cases where they violate the Conventions without violating the legal U.S. definition of torture.

The Tools They Need?:

Supporters of the bill argue that it provides the Bush administration with the tools it needs to fight terrorism. Truth be told, the tools it would allow--trial by military commission, and interrogation using "moderate physical pressure" torture-lite techniques--have never been shown to be effective. Torture, in particular, tends to generate a prohibitively high number of false leads.

Nothing New Under the Sun?:

Both critics and supporters of the bill describe it as something very new and either disastrous or necessary, respectively. But the truth is that, other than the military commission itself, there are few innovations in the bill. Its primary purpose is to provide congressional support for what the executive branch has already been doing over the past five years. In other words, the most controversial policies described in this bill are already at least five years old.

Is It a Good Bill?:

No, it's still a terrible bill and should offend anyone who cares about basic human rights, regardless of party affiliation. It effectively endorses the Bush administration's past record with regard to detainee treatment, and gives us reason to expect to see more of the same.

Aftermath:

In Boumediene v. Bush (2006), the U.S. Supreme Court struck down the habeas corpus restrictions written into the Military Commissions Act.
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