Q.        What is the purpose of the Military Commissions Act of 2006?
Q.        What is the Hamdan decision and why was it important?
Q.        What are CVT’s concerns about the Military Commissions Act (MCA)?

Q.        What is Common Article 3 of the Geneva Conventions?
Q.        How does the MCA affect America’s commitment to human rights and the Geneva Conventions?
Q.        How does the MCA affect a detainee’s ability to bring forward allegations of mistreatment?
Q.        Does the MCA give immunity to those who may have engaged in torture in the past?
Q.        Does the MCA allow the use evidence obtained under coercion?

Q.        Does the MCA allow “enhanced” interrogation techniques such as waterboarding, stress positions and sleep deprivation?
Q.        What now?

Q. What is the purpose of the Military Commissions Act (MCA) of 2006?

A.        The legislation was drafted in response to the Supreme Court’s June 29 ruling in the case of Hamdan v. Rumsfeld.  The Court held that the administration’s military commission system for trying terror detainees violated both U.S. and international law. To ensure that the detention and trial of enemy combatants could continue, the President urged Congress to pass a bill to legalize the system of military commissions to try terrorist suspects, allow for the continuation of the CIA’s interrogation program and enumerate what specific crimes are punishable as violations of Common Article 3 of the Geneva Conventions. After several weeks of wrangling between the Administration and Congress, on Friday September 29^th, Congress passed the Military Commissions Act of 2006.  In the wake of passage Senior Senate Republican Mitch McConnell (R-KY) stated that; “Armed with these tools, the president will be able to continue the terrorist interrogation program that we know has saved innocent American lives. The tribunal system codified in this legislation protects our troops, protects classified information and protects the rights of defendants.”   

Q. What is the Hamdan decision and why was it important?

A.        Salim Ahmed Hamdan, was a Yemeni bodyguard and driver for Osama Bin Laden, who has been held at Guantanamo Bay since 2002. He claimed he is innocent and called into question his status as an "enemy combatant." Hamdan's lawyers claimed that the military commissions are unlawful under Common Article 3 of the Geneva Conventions and do not uphold basic military justice protections for wartime detainees.  The U.S. Supreme Court agreed.  The decision was important because it stated that the Executive does not have power to hold and try terrorist detainees without Congressional approval and oversight and that terrorists’ are indeed protected by the Geneva Conventions. 

Q. What are CVT’s concerns about the Military Commissions Act (MCA)?

A.        CVT has four main concerns (outlined in more detail below): 

1. The authority given the president to determine what interrogation techniques used by the CIA are lawful.
2. The lack of judicial review – habeas corpus – for detainees to challenge their treatment.
3. The immunity granted to those who engaged in torture before December 2005.
4. The authority to use coerced evidence gathered before December 2005 under certain circumstances.

Q. What is Common Article 3 of the GenevaConventions?

A.        The primary source of international humanitarian law (also called the laws of war) is the four Geneva Conventions of 1949, which the U.S. ratified in 1955. The Third Geneva Convention concerns prisoners-of-war; the Fourth Geneva Convention safeguards so-called “protected persons,” i.e. detained civilians.  Common Article 3 of the Geneva Conventions refers to minimum standards of treatment during an armed conflict or military occupation.  It prohibits “[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …outrages upon personal dignity, in particular humiliating and degrading treatment.”  Torture or inhuman treatment of prisoners-of-war (Geneva III, arts. 17 & 87) or protected persons (Geneva IV, art. 32) are grave breaches of the Geneva Conventions, and are considered war crimes (Geneva III, art. 130; Geneva IV, art. 147).

Q. How does the MCA affect America’s commitment to human rights and the Geneva Conventions?

The MCA does not reinterpret America’s commitment to abide by the Geneva Conventions. It does define specific offenses that constitute “grave breaches” of Common Article 3. In this regard, the bill expressly outlaws torture and cruel or inhuman treatment, biological experiments, murder, mutilation, serious bodily injury, rape, sexual assault and the taking of hostages. The bill also empowers the president to define all other non-grave breaches of Common Article 3.

CVT is particularly concerned with this provision because in the past, the president has asserted that the U.S. does not torture while simultaneously authorizing U.S. personnel to use waterboarding. That is why CVT is now calling for significant congressional oversight to ensure that the president’s interpretations don’t run afoul of congressional intent by allowing him to authorize torture, cruelty and inhumane treatment.

Q. How does the MCA affect a detainee’s ability to bring forward allegations of mistreatment?

The ability for detainees to ask for judicial review to challenge their treatment – habeas corpus – has been stripped. This is a necessary tool to prevent torture.  If our laws prohibit torture but we don’t provide the tools to examine allegations of abuse, it is a loophole that allows mistreatment to continue unchecked. 

Q.  Does the MCA give immunity to those who may have engaged in torture in the past?

The MCA grants some immunity for past abuses that occurred before passage of the Detainee Treatment Act in December 2005 (a.k.a. the McCain Amendment).  This was done because the administration authorized abusive interrogation techniques for U.S. officials, including the military and the CIA, after 9/11. The majority of the Senate felt those individuals should not be held responsible for treatment they thought was legal because it was authorized by the administration.

Q. Does the MCA allow the use of evidence obtained under coercion?

A.        The MCA bars the admission of evidence obtained by cruel and inhuman treatment, except any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act that a judge declares reliable and probative.

Q. Does the MCA allow “enhanced” interrogation techniques such as waterboarding, stress positions and sleep deprivation?

A.        CVT believes that interrogation practices previously used by the U.S., including waterboarding, prolonged sleep deprivation, induced hypothermia, stress positions, shaking and sensory deprivation and overload, are prohibited by the MCA.These are clearly forms of torture, cruel and inhumane treatment. This understanding is supported by Sen. John McCain’s statement on the floor of the Senate (09/28): “...I am confident that the categories included in this section will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged – I emphasize ‘that need not be prolonged.’”  He also stated:  “We expect the CIA to conduct interrogations in a manner that is fully consistent not only with the Detainee Treatment Act and the War Crimes Act, but with all of our obligations under Common Article 3 of the Geneva Conventions.”

Q. What now?

A.        We must remain vigilant and insist in the coming months and years that Congress and the Administration clearly explain how they are interpreting and putting into practice this legislation.  We must continue to educate members of Congress and our friends and family about what torture is and what it does—to everyone it touches. Congress must still address the policy of extraordinary rendition – where the U.S. government hands detainees to certain foreign governments for interrogation. These governments are known for brutal physical and psychological interrogations. Finally, the U.S. must provide for the rehabilitation of victims we are responsible for creating.