New Concerns About Due Process and Rule of Law Surface in Last-Minute Changes to Military Commissions Act

Human Rights First opposes the latest version of the Military Commissions Act introduced in both houses of Congress last night. The legislation includes language that raises significant new concerns about compliance with the Geneva Conventions and fundamental due process principles. We applaud the efforts by Senator McCain and others to preserve the meaning and requirements of Common Article 3 of the Geneva Conventions. However, the bill now under consideration includes other provisions that would place the United States at odds with the laws of war and American values.

Among the examples:

The new version of the legislation includes a vague and expanded definition of “unlawful enemy combatants” (similar to that in the bill originally proposed by the White House). This overly-broad definition is at odds with one of the most basic principles of the laws of war: the distinction between combatants and non-combatants. The current language blurs that critical distinction. Under this new language, people who have no connection to any battlefield, or even to terrorist acts, could be considered “unlawful enemy combatants.” While the bill provides that such individuals may be tried by military commission, the import of the language is much broader. It could authorize the government to seize and detain indefinitely, without charge or trial, anyone who “purposefully and materially supported hostilities” even if not engaged in armed conflict, including U.S. citizens arrested inside the United States. This authority exacerbates the existing flaws in the bill that would deny habeas corpus to any alien “enemy combatants.” The new language also makes determinations of combatant status by the executive branch unreviewable in military commission trials.

The new version of the bill would also increase already overly-expansive executive authority over military commission procedures and rules. The bill approved by the Senate Armed Services Committee included a provision requiring that the procedures for trial by military commission comport with the ordinary rules for courts martial, except as provided by the bill. The current version reverses that presumption, granting the Secretary of Defense authority to deviate from courts martial procedures, except as provided by the bill. The new language also purports to further limit federal court review of military commission findings. Combined with existing provisions that limit habeas corpus and other judicial review, these new provisions could strip individuals of the ability to challenge the factual and legal basis for their detention. The provisions could also deny individuals the ability to seek a remedy in U.S. civilian courts if they have been subjected to coercion or other abuses that violate the Geneva Conventions.

If it is enacted into law, the Military Commissions Act of 2006 would have a far-reaching impact on the ability of the United States to secure cooperation with allies in combating terrorism, and would fundamentally alter the character of the American justice system. In the last few days of congressional negotiations, critical provisions of the legislation have changed. Cumulatively, the changes in the latest version of the bill have moved further away from a framework that aligns with American values and commitment to the rule of law.

These concerns compound pre-existing, serious flaws in the legislation.

Human Rights First urges Congress to reject this deeply flawed legislation. It is a complex bill, with many moving parts, the full import of which are likely not yet well understood. Congress should take the time to consider these new provisions deliberatively to ensure that the legislation does not undermine the United States’ commitment to the rule of law, the success of its fight against terrorism, and the safety of U.S. servicemen and women.


Published on September 26, 2006


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