War on Terror detainee legislation

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Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, the Bush Administration began using several facilities around the world as both military prisons and interrogation centers for individuals accused of being al-Qaeda or Taliban operatives. These have included secret prisons in Thailand, Afghanistan, and several Eastern European countries, as well as the U.S. Naval Base in Guantanamo Bay, Cuba. [1] In the years which followed, the administration is roundly criticized by domestic lawmakers, foreign leaders, and numerous human rights organizations for its allegedly poor treatment of detainees at these sites, primarily Guantanamo Bay. [2] Beginning in 2005, the U.S. Congress began considering legislation to both authorize and suspend the administration's policies towards detainees.

Contents

Background

Many of the criticisms surrounding the treatment of prisoners at Guantanamo Bay concern Article 3 of the Geneva Convention, which prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment” of detainees. In addition, it prohibits nations engaged in combat not of “an international character” from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” [3]

In 1996, the U.S. Congress strengthened the sovereignty of the Geneva Convention with its passage of the War Crimes Act. The bill, which passed by unanimous consent in the Senate and a voice vote in the House, criminalized breaches of Geneva and authorized the U.S. to prosecute war criminals (including members of the American military). Both the Department of Defense and the military supported the bill, “because doing so set a high standard for others to follow.” [4]

Since 2001, the Bush Administration has admitted that detainees are not receiving all of the rights guaranteed in the Geneva Convention. In fact, at a July 13 hearing of the Senate Armed Services Committee, the Air Force’s top military lawyer, Maj. Gen. Jack L. Rives, affirmed that “some of the techniques that have been authorized and used in the past have violated Common Article 3.” The top military lawyers for the Army, Navy and Marine Corps, who were seated next to Rives, all agreed. [5]

The administration, however, has argued that Geneva does not apply to the individuals apprehended as a part of the War on Terror. In their view, Geneva guarantees rights to military officials representing recognized governments; those kept at Guantanamo do not fit this distinction, and are simply, “enemy combatants.” Therefore, the special military commissions that have been established to interrogate suspects are, in their view, legal. [6]

McCain torture ban amendment

Following reports of administration policies overseas, as well as the public revelation of incidents of torture by U.S. personnel at Abu Ghraib, Sen. John McCain (R-Ariz.) proposed an amendment to a Defense Department Appropriations bill (H.R. 2863) which would effectively ban U.S. officials from using torture. On October 5, 2005, the Senate voted 90-9 to support the amendment. Specifically, it said that: [7]

  • No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
  • No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
  • In this section, the term cruel, inhuman, or degrading treatment or punishment means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. [8]

FY2006 Defense Appropriations Bill: Amendment to ban the U.S. military from using torture

Senate record vote:
Amendment to ban torture

October 5, 2005
Passed, 90-9, view details
Dem: 44-0 in favor, GOP: 45-9 in favor, Ind: 1 in favor

On December 14, 2005, the House voted 308-122 in favor of the amendment. Because the chamber had already passed its version of the Defense Appropriations bill, the vote was not binding. Nevertheless, it was meant to show the chamber's support to those who would negotiate the final bill to be passed by both houses. [9] President Bush initially threatened to veto the bill, arguing that it too greatly limited the techniques of American interrogators. Once it became clear, however, that both the House and Senate had veto-proof margins, he agreed to it. Upon approving the bill, however, Bush issued the following controversial signing statement: [10]

  • "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

This could mean that Bush would enforce the bill only when he could do so and still pursue the War on Terror. [11]

Detainee Treatment Act of 2005

Congress passed the Detainee Treatment Act in December 2005. The Act barred detainees at Guantanamo Bay from bringing future habeas corpus challenges to their detention or the conditions of their detention. [12] Similar provisions were inserted into the Military Commissions Act of 2006.

Supreme Court ruling: Hamdan v. Rumsfeld

On June 29, 2006, the Supreme Court ruled 5-3 in Hamdan v. Rumsfeld that the federal government did not have the right to set up special military commissions in Guantanamo Bay. In the court's view, the District of Columbia District Court (who had sided with the administration, 2-1) had erroneously ruled that the detainees were not subject to the Geneva Convention. In addition to violating these provisions, the administration’s program was also found to be in violation of the Uniform Code of Military Justice (UCMJ). Specifically, the administration’s program wrongfully allowed: [13]

  • The defendant and the defendant’s attorney to be forbidden from viewing certain evidence used against the defendant; the defendant’s attorney to be forbidden from discussing certain evidence with the defendant.toy
  • Evidence judged to have any probative value to be admitted, including hearsay, unsworn live testimony, and statements gathered through torture.
  • Appeals to be heard only by the Executive Branch, rather than courts (except in limited circumstances). [14]

The decision in Hamdan reasserted the ruling in a 2004 case brought before the court, Rasul v. Bush. In this case, several Guantanamo Bay detainees challenged the U.S. government’s practice of holding foreign nationals captured in connection with its war against al-Qaida in indefinite detention without counsel, the right to a trial, or knowing the charges against them. The Supreme Court, over the administration’s objections, agreed in November 2003 to hear the cases of the detainees. Previously, a U.S. district court and the U.S. Circuit Court of Appeals for the District of Columbia ruled that U.S. courts lacked jurisdiction to hear the appeals because Guantanamo Bay was not a sovereign territory of the United States. Arguments were heard before the Supreme Court on April 20, 2004; in a ruling on June 28, 2004, the Court ruled that the detainees did in fact have access to U.S. Courts to challenge their detention. [15] [16]

Bush Administration response

The ruling implied that the Bush Administration would have to try detainees held as part of the War on Terror either by court martial (as U.S. troops and prisoners of war are) or by a civilian federal court. The administration, however, argued that this would not allow them to properly interrogate terrorist suspects because it would expose military and CIA personnel to possible prosecutions. [17]

In response, the White House asked Congress to define the terms of Article 3 of the Geneva Convention. In justifying the request, Press Secretary Tony Snow stated, “If you have people in the field trying to question terrorists, if you do not have clear legal definitions, they themselves will be subject to the whims and the differing interpretations given by foreign courts, foreign judges and foreign tribunals...and we don't think that's appropriate.” The administration hoped to alter the government’s interpretation of Geneva in a way which allowed for its military commissions to remain open. [18]

Military Commissions Act of 2006

In 2006, several versions of the Military Commissions Act of 2006 (MCA) were introduced. The MCA created rules for the detainment, interrogation and trials of detainees in the War on Terror. It was eventually passed and was signed by President George W. Bush.

Main article: Military Commissions Act of 2006

Justice Department tells courts not to consider habeas corpus petitions

On October 17, 2006, the Bush Administration sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit stating that it no longer had jurisdiction over a habeas corpus case that had been under consideration since 2004. The U.S. District Court cases, which had been stayed pending the appeals court decision, were similarly invalid. On October 18, the Justice Department formally notified the U.S. District Court in Washington D.C. that, as a result of the new legislation, it no longer had jurisdiction to consider 196 pending habeas corpus cases filed by inmates at the Guantanamo Bay prison in Cuba. The Military Commissions Act states that "no court, justice, or judge" can consider these petitions or other actions related to treatment or imprisonment filed by anyone designated as an "enemy combatant," now or in the future. [19]

Defense Department releases rules for detainee trials, January 2007

On January 18, 2007, the Department of Defense sent a copy of its new manual of rules for detainee trials to Congress. It was leaked the same day to the Associated Press, which reported on its contents. Rep. Ike Skelton (D-Mo.), the new chair of the House Armed Services Committee stated that he plans to study the manual to make sure it does not "run afoul" of the Constitution. The leaked manual states that:

  • A defendant's lawyer cannot reveal classified evidence in trial until it is reviewed by the government.
  • Statements obtained under torture and "cruel, inhuman or degrading treatment" are not allowable as evidence, as required by the Military Commissions Act and the Constitution, respectively. Statements obtained through coercive interrogation are allowed if they were obtained before December 30, 2005 and the judge deems them reliable. [20]

Articles and Resources

Resources

Articles

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