Blog
Published on September 13, 2006
Human Rights First urges Congress to reject the proposed Military Commission Act of 2006, which would put the United States in violation of core principles of the Geneva Conventions. The bill, currently being debated in both houses of Congress, contains many troubling provisions. Key among these is one that would violate the Geneva Conventions requirement that all detainees be treated humanely. The bill would replace the absolute prohibition on cruel and inhuman treatment with a “flexible” standard whose meaning is less certain than the present rule and would permit abuses depending on the circumstances.
“Plain and simple, this bill is an invitation to more Abu Ghraibs,” said Elisa Massimino, the Washington Director of Human Rights First. “These provisions fly in the face of the President’s assertion that detainees will be treated humanely. Such a retreat will only serve to put captured Americans at risk now and in future conflicts.”
The bill would reinterpret U.S. obligations under Common Article 3 of the Geneva Conventions. It will introduce, for the first time, a sliding scale definition of cruel treatment. This invites coercive interrogations, a risk that is compounded when detainees are held in secret.
A retreat from the Geneva Conventions standard will create confusion among U.S. personnel about the rules for treatment of detainees, and will be viewed here and around the world as a renunciation by the United States of its long-standing commitment to humane treatment.
“The Administration is asking Congress to redefine the prohibition against inhumane treatment, opening the door to the same abusive techniques that were authorized before, and rejected by Congress and the courts,” said Ms. Massimino. “This is not the way to win the battle of ideas that is at the heart of U.S. efforts to combat extremist violence.” she said.
Human Rights First is troubled by other provisions in the bill, and in particular, the bill’s vague and overly broad definition of enemy combatants, its narrow definition of what constitutes a war crime and the elimination of significant aspects of judicial oversight.
The bill revives faults recently found by the U.S. Supreme Court in the Administration’s previous Military Commission scheme. If it becomes law, it would guarantee long delays in trials while legal challenges are being resolved, rather than the swift justice that the Administration says is needed.
Overbroad Definition of Enemy Combatants – The Military Commission Act of 2006 defines “enemy combatant” so broadly that it effectively would authorize the Administration to apprehend and detain indefinitely people who have no real connection to armed conflict. To detain such persons according to wartime rules, while denying them the right to challenge their detention in court, is a violation of U.S. obligations under international human rights and humanitarian laws.
Retroactive Repudiation of Geneva Convention Obligations and Immunization for Prior Abuses – Last week the US Army released its revised Field Manual on Interrogations. Consistent with the military’s tradition, it clearly and explicitly bars interrogation techniques such as water-boarding (simulated drowning), forced hypothermia and other cruel and abusive interrogation techniques. In releasing this manual, Lt. General John Kimmons, the Army’s Deputy Chief of staff for Intelligence said “no good is going to come from abusive practices.”
Yet, in sharp contrast, the Administration’s bill proposes both limiting the scope of U.S. obligations under Common Article 3 and scaling back criminal liability for the kinds of conduct the Pentagon just rejected, opening the door again to abusive practices, including by the CIA in its secret prisons.
“Common Article 3 is vital to the safety of U.S. personnel” said Ms. Massimino. “If the Administration’s proposal is adopted, the U.S. will forfeit the moral authority to challenge the inhumane treatment of American prisoners in the future,” she said.
Elimination of Judicial Oversight – The Administration’s proposal also removes the federal courts from playing any meaningful oversight role in matters related to detention, interrogation and trials of enemy combatants. It fundamentally alters the role of the courts, denying detainees the opportunity to petition for habeas corpus or any other judicial relief. Under the proposed system, any non-citizen designated as an unlawful enemy combatant could be held indefinitely without due process of law, with no means of redress if for torture or other abusive treatment.
Elimination of judicial oversight is particularly disconcerting in light of the Administration’s proposals, also in this bill, to admit coerced evidence and prohibit those accused of national security crimes of having access to all the evidence being used to convict them. This latter provision has drawn intense opposition from senior military lawyers. Under the Administration’s proposal, a detainee could face conviction and even execution on the basis of secondhand information, which he or she has had no opportunity to hear, let alone to challenge.
