Military Commissions Act of 2006 – Turning Bad Policy Into Bad Law

Amnisty International | Sept 29 2006

In recent days, human rights violations perpetrated by the USA throughout the “war on terror” have in effect been given the congressional stamp of approval. With the passing of the Military Commissions Act of 2006 by the US House of Representatives on 27 September and the Senate on 28 September, Congress has turned bad executive policy into bad law. This document looks back on the evolution of the executive’s “war on terror” detention policies, in order to illustrate the sort of violations in which Congress, through inaction and now legislation, has become complicit. Amnesty International will continue to campaign for the USA’s “war on terror” detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.

On 21 September 2001, Amnesty International faxed a letter to President George W. Bush. The organization urged the President to put respect for human rights and the rule of law at the heart of his country’s response to the crime against humanity that was perpetrated on 11 September 2001. “In the wake of a crime of such magnitude”, the letter said, “principled leadership becomes crucial… We urge you to lead your government to take every necessary human rights precaution in the pursuit of justice.”

Amnesty International deeply regrets that its appeal fell on deaf ears. The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:

    • Secret detention
    • Enforced disappearance
    • Torture and other cruel, inhuman or degrading treatment
    • Outrages upon personal dignity, including humiliating treatment
    • Denial and restriction of habeas corpus
    • Indefinite detention without charge or trial
    • Prolonged incommunicado detention
    • Arbitrary detention
    • Unfair trial procedures

Yet at the same time, US officials have continued to characterize the USA as a “nation of laws” and one that in the “war on terror” is committed to what it calls the “non-negotiable demands of human dignity”, including the “rule of law”.

It is tempting to resort to accusations of hypocrisy, particularly when the USA itself condemns the very same practices if carried out by other countries. But in seeking to challenge US conduct, perhaps it is more useful to consider how vulnerable the law is to elastic interpretation, manipulation or selective application by the state. And that, for better or worse, a government can use policy to drive the law rather than vice versa. In the USA’s case, a long-held resistance to applying international law to its own conduct compounds the problem.

Under the US administration’s selective application of the laws of war and outright dismissal of international human rights law, for example, the Guantánamo detention camp is the “most transparent facility in the history of warfare” according to the Pentagon, rather than the icon of lawlessness that many outside the USA perceive it to be.

In similar vein, with elastic interpretation of the law, secret detention becomes “legal”. In his speech on 6 September 2006 confirming and defending the Central Intelligence Agency’s program of secret detentions, President Bush emphasised that “this program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws”.

Again, there is a stark “disconnect” between the USA and the international community. After all, President Bush’s speech came only weeks after two expert United Nations bodies – the Committee against Torture and the Human Rights Committee – told the US government that secret detentions violated the USA’s international treaty obligations. In effect, the President was rejecting the conclusions of these UN bodies, as well as admitting that the USA had resorted to enforced disappearance, a crime under international law.

The US administration’s interpretation of the law has been driven by its policy choices rather than a credible postulation of its legal obligations. One core policy choice was to frame its response to the 11 September attacks in terms of a global “war” rather than as a criminal law enforcement effort. The law would have to be made to fit this “new paradigm”, as President Bush characterized the situation in a 7 February 2002 memorandum on detentions.

At a press conference in June 2004, with the administration seeking to quell the criticism of its policies following the Abu Ghraib torture revelations, then White House Counsel Alberto Gonzales recalled the administration’s post-9/11 discussions thus:

    “[S]ome questions we faced were, for example: What is the legal status of individuals caught in this battle? How will they be treated? To what extent can those detained be questioned to attain information concerning possible future terrorist attacks? What are the rules? What will our policies be?…Just as military theorists thought about new strategies and tactics to fight terrorists, so, too, did lawyers in looking at how this war fits into the current legal landscape.

From these questions flowed a number of memorandums written in late 2001 and early 2002 by administration lawyers concocting legal positions on a variety of issues. These issues included the limits of the prohibition on torture or other ill-treatment, whether the choice of Guantánamo as a location for detentions would keep detainees out of the reach of the US courts, and the use of military commissions, to quote a November 2001 Justice Department memorandum, as “entirely creatures of the President’s authority as Commander-in-Chief”. The White House Counsel himself drafted advice to the President suggesting that a benefit of not applying the Geneva Conventions to detainees picked up in the Afghanistan conflict would be that prosecutions of US personnel under the US War Crimes Act would become more difficult. 



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