By passing the Military Commissions Act, the United States Congress has, in effect, given its stamp of approval to human rights violations committed by the USA in the "war on terror". This legislation leaves the USA squarely on the wrong side of international law, and has turned bad executive policy into bad domestic law. Amnesty International will campaign for repeal of this act and fully expects the constitutionality of this legislation to be challenged in the courts. In the "war on terror", the US administration has resorted to secret detention, enforced disappearance, prolonged incommunicado detention, indefinite detention without charge, arbitrary detention, and torture or other cruel, inhuman or degrading treatment. Thousands of detainees remain in indefinite military detention in US custody in Iraq, Afghanistan and Guantánamo Bay. Congress has failed these detainees and their families. President Bush has defended the CIA's use of secret detention and in the debates over the Military Commissions Act, members of Congress have done the same. This policy clearly violates international law.

Endorse the administration's "war paradigm" - under which the USA has selectively applied the laws of war and rejected international human rights law.

Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward. (1) Yes, a few parts of the MCA do apply to citizens; and (2) the MCA is probably unconstitutional in many of its applications to citizens; and (3) some constitutional applications of the MCA to citizens are deeply troubling. A U.S. citizen may be an unlawful enemy combatant under section 948a. Section 948a(1) defines an unlawful enemy combatant as "(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens. Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a.

it grieves me to think that three decades in this body that I stand here in the Senate, knowing that we're thinking of doing this. It is so wrong. It is unconstitutional. It is un-American. It is designed to ensure the Bush-Cheney administration will never again be embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power. The Supreme Court said, 'You abused your power.' He said, 'Ha, we'll fix that. We have a rubber stamp, a rubber stamp, Congress, that will just set that aside and give us power that nobody, no king or anybody else set foot in this land, ever thought of having.'

Now, habeas corpus was first brought in the Magna Carta in the 1200s. It's been a tenet of our rights as Americans. And what they're saying is that if you're an alien, even if you're in the United States legally, a legal alien, may have been here ten years, fifteen years, twenty years legally, if a determination is made by anybody in the executive that you may be a threat, they can hold you indefinitely, they could put you in Guantanamo, not bring any charges, not allow you to have a lawyer, not allow you to ever question what they've done, even in cases, as they now acknowledge, where they have large numbers of people in Guantanamo who are there by mistake, that they put you -- say you're a college professor who has written on Islam or for whatever reason, and they lock you up. You're not even allowed to question it. You're not allowed to have a lawyer, not allowed to say, "Wait a minute, you've got the wrong person. Or you've got -- the one you're looking for, their name is spelled similar to mine, but it's not me." It makes no difference. You have no recourse whatsoever.

S.3930 (the Bill): Sec. 6 (a) `(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who-- `(A) is currently in United States custody; and `(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Under the Nuremberg standard, Bush is definitely a war criminal. The US Supreme Court also exposed Bush to war crime charges under both the US War Crimes Act of 1996 and the Geneva Conventions when the Court ruled in Hamdan v. Rumsfeld against the Bush administration's military tribunals and inhumane treatment of detainees. President Bush and his Attorney General agree that under existing laws and treaties Bush is a war criminal together with many members of his government. To make his war crimes legal after the fact, Bush has instructed the Justice (sic) Department to draft changes to the War Crimes Act and to US treaty obligations under the Geneva Conventions. ... Under the US Constitution and US legal tradition, retroactive law is impermissible.

"More over, Mr. Bush, you are accomplishing in part what Osama Bin Laden and others seek -- a fearful American populace, easily manipulated, and willing to throw away any measure of restraint, any loyalty to our own ideals and freedoms, for the comforting illusion of safety." "Have you no sense of decency, sir?"
--Keith Olbermann, Sept 5/2006

The MCA greatly expands the definition of enemy combatants, because it greatly expands the definition of "unlawful enemy combatants." If the government may detain any enemy combatants, a fortiori it may detain unlawful ones. The new definition is fuzzy: it includes citizens who "materially support" hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.... [italics added] ... One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens. [ so far Gabriel Maior ] However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, [and] claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. [italics added] To the extent that the MCA would prevent such a determination, it is unconstitutional.

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights. This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

With President Bush poised to sign the White House-backed detainee treatment bill into law, groups are promising to challenge it in court "in days." "I don't think there's a snowball's chance in 'H' that this will be found constitutional," Michael Ratner, president of the Center for Constitutional Rights, told Congressional Quarterly (sub. req.). CCR represents a number of Guantanamo prisoners. Strangely, some senators who voted for the bill weren't convinced of its constitutionality. Sen. Arlen Specter (R-PA), who voted for the bill even after his amendment to preserve certain rights for detainees was defeated, called the proposal "patently unconstitutional on its face," The Washington Post reported. When CQ asked Sen. John McCain (R-AZ), who negotiated with the White House to win minor concessions on the legislation, if the bill was constitutional, he responded "I think so."

Under the Nuremberg standard, Bush is definitely a war criminal. The US Supreme Court also exposed Bush to war crime charges under both the US War Crimes Act of 1996 and the Geneva Conventions when the Court ruled in Hamdan v. Rumsfeld against the Bush administration's military tribunals and inhumane treatment of detainees.