ACLU Letter to the Senate Strongly Urging Opposition to S. 3930, the Military Commissions Act of 2006

September 25, 2006
RE: Oppose the Revised “Military Commissions Act of 2006,” S. 3930, Unless Amended to Correct Five Serious Problems that Undermine the Geneva Conventions and the Rule of Law

Dear Senator:

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The American Civil Liberties Union strongly urges you to oppose S. 3930, the Military Commissions Act of 2006, unless amended to ensure that:

  • the President will have no authority to authorize any of the acts prohibited by Common Article 3 of the Geneva Conventions and the Army Field Manual on Interrogations, which reinforces the Common Article 3 prohibitions;
  • the courts are not stripped of their historical and constitutional role as a check on the Executive Branch, in ensuring that the protections of the Constitution and Common Article 3 of the Geneva Conventions are enforced;
  • government officials who authorized or ordered illegal acts of torture and abuse will not receive retroactive immunity;
  • no one can be convicted on the basis of evidence that was literally beaten out of a witness or obtained through other abuse by either the federal government or by countries such as Syria, Jordan, or Egypt that tortured and abused persons sent to them by the federal government;
  • at minimum, those acts which violate the McCain anti-torture amendment remain criminal acts under the War Crimes Act.

Unless Congress makes these five changes to the legislation, we urge you to vote “no” on the legislation.

Congress Should Not Give the President the Authority to Authorize Any Acts in Violation of Common Article 3 of the Geneva Conventions or the Army Field Manual on Interrogations

S. 3930 not only lacks any explicit prohibition against the horrific abuse inflicted on persons by the federal government during the past four and one-half years, but it provides the President with explicit authority to define Common Article 3 violations and revamps the War Crimes Act without providing any specific guidelines.  As a result, there is no clear bar to the Bush Administration once again authorizing the federal government to engage in illegal acts such as waterboarding, death threats, induced hypothermia, use of dogs, and stress positions. 

Paragraph 8(a)(3) of S. 3930 provides that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions,” while subsection 7(a) provides that the Geneva Conventions may not be invoked in any habeas or civil action “as a source of rights in any court of the United States.”  As a result of these two provisions, the President will have unparalleled and unilateral authority to determine which interrogation tactics he will authorize.

Moreover, by revamping the War Crimes Act and retroactively applying the new provisions, S. 3930 replaces a provision criminalizing “grave breaches” of Common Article 3 of the Geneva Conventions with a list of violations that is less inclusive and less certain than current law.  For example, subsection 8(b) of S. 3930 will give the Executive Branch and its prosecutors discretion to answer new questions such as: 

- whether the “serious physical or mental pain or suffering” is different than “severe,”

- whether “cuts, abrasions, or bruises” can be the basis for a crime when they appear to be specifically excluded from the list of “serious physical pain or suffering,”

- whether the requirement of “bodily injury” in the definition of “serious physical pain or suffering” means that waterboarding cannot be “serious physical pain or suffering,” and

- whether the bill’s prohibition against “serious and non-transitory mental harm (which need not be prolonged)” bars prosecutions for brief use of waterboarding or mock executions.

Administration officials--instead of Congress--will be the ones specifying which acts fall within each of these new terms.

The problem is compounded by the White House’s refusal to state which practices are barred.  In fact, White House National Security Advisory Steven Hadley refuses to state whether even waterboarding would be prohibited. 

We have serious concerns about the lack of specificity because we have seen the results of the unlawful orders given, and the chaotic atmosphere created, over the past several years.  In documents either provided to the ACLU in our Freedom of Information Act case or documented by the International Committee of the Red Cross, we have seen evidence of federal government employees engaging in acts such as soaking a prisoner’s hand in alcohol and setting it on fire, administering electric shocks, subjecting prisoners to repeated sexual abuse and assault, including sodomy with a bottle, raping a juvenile prisoner, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner’s ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, and breaking a prisoner’s shoulders.

As part of the McCain anti-torture amendment to the Defense Department authorization bill last year, Congress required the Defense Department to comply with the Army Field Manual on Interrogations.  After a lengthy review, the Army Field Manual was revised and released earlier this month.  As a result of this review and the requirements of this section of the McCain amendment, the Defense Department brought itself into compliance with Common Article 3 of the Geneva Conventions and explicitly prohibits all of these horrific practices. 

Congress should insist that there should not be one set of rules for men and women wearing the nation’s uniform and a lesser set of rules for civilian contractors and the CIA.  Everyone should be under one set of rules ensuring compliance with Common Article 3 of the Geneva Conventions.  We urge Congress to require government-wide compliance with the Army Field Manual on Interrogations as a way to ensure that these horrific practices do not recur.

Congress Should Not Strip the Courts of Their Historical and Constitutional Role as a Check on the Executive Branch

Congress should amend S. 3930 to ensure that courts are not stripped of their historical and constitutional role as a check on the Executive Branch.  In particular, the courts must retain their authority to ensure that the protections of the Constitution and Common Article 3 of the Geneva Conventions are enforced.

Section 6 of S. 3930 strips any alien deemed an “enemy combatant” of the right to be heard in court to establish his or her innocence, regardless of how long the person is held without charge.  The Great Writ of habeas corpus is the foundation of our nation’s limits on arbitrary executive power over any person.  Ironically, if S. 3930 had been law three months ago, the detainee who was the petitioner in the Supreme Court case that found the military commissions illegal, Hamdan v. Rumsfeld, could not have brought his challenge to the president’s illegal military commissions, and even a detainee who was being subjected to torture would never be allowed to seek relief from any U.S. courts.  There is no reason to adopt this dangerously broad forfeiture of the traditional check of last resort on executive power.  Denying access to the courts would also signal to the world that we so fear our own independent judiciary that we must cut off all access to it.

This provision has nothing to do with the military commission trials.  In fact, its primary impact will be on the hundreds of detainees who are being held indefinitely and have never been charged with any war crime.  While the bill does allow limited appeals for those who do go before a military commission or a Combatant Status Review Tribunal (CSRT), there is no guarantee that any person detained by our government be provided either a trial or a CSRT.  Even when the government holds a CSRT proceeding, the government can make its decision based on coerced and hearsay evidence.  Moreover, based on the reports from CSRT proceedings in Guantanamo, it appears that most, if not all, of the detainees are being held based almost entirely on evidence that they may never have seen.  None of the detainees have been afforded any relief by the inadequate appeals process established for these CSRTs.

The ancient writ of habeas corpus is our check of last resort against arbitrary executive power, and the courts are using it in an appropriate, restrained matter.  This Congress should not take any actions that would remove this critical judicial check on the administration.  Although the Supreme Court did not have to reach the question in Hamdan because it decided the case on statutory grounds, we believe that a congressional attempt to strip habeas rights will be found unconstitutional by the Supreme Court

These problems are compounded by the grant of unilateral authority, in paragraph 8(a)(3), that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions” and by the provision in paragraph 8(a)(2) that “no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions” in the revised War Crimes Act--which eliminates the most significant sources of law for interpreting Common Article 3 of the Geneva Conventions.  Both of these provisions bolster the kinds of bizarre interpretations made by the Administration during the past several years of American laws prohibiting torture and abuse.

Congress should not pass S. 3930 unless it first restores the authority of the courts as a separate and independent branch of government.  Congress should not pass a law that attempts to end the system of checks and balances for Executive Branch decisions on the use of torture and abuse.

Congress Should Not Give Retroactive Immunity to Government Officials Who Authorized or Ordered Illegal Acts of Torture and Abuse

Section 8 of S. 3930 provides a “Get Out of Jail Free” card to government officials who authorized or ordered illegal acts of torture and abuse--and then backdates the card to nine years ago.  Subsection 8(b) of S. 3930 revamps the War Crimes Act to replace the prohibition on all breaches of Common Article 3 of the Geneva Conventions with a less inclusive list of prohibited acts.  Paragraph 8(b)(2) of the bill makes the revisions to the War Crimes Act retroactive to 1997, and also makes the prohibition on “serious and non-transitory mental harm (which need not be prolonged)” inapplicable entirely until the date of enactment of S. 3930.

As a result, of these provisions in section 8, government officials who authorized or ordered illegal acts of torture and abuse will not be subject to prosecution for many of the acts that they authorized or ordered.  These provisions of the bill help fulfill the goal of then-White House Counsel Alberto Gonzales to avoid War Crimes Act prosecutions of government officials by advising the President to attempt to suspend Common Article 3 of the Geneva Conventions for many detainees.

Unless these retroactivity provisions are changed, the government’s top torture officials may meet their objective of avoiding liability for authorizing and ordering illegal acts of torture and abuse.   For example, in a January 25, 2002 draft memorandum for the President, Gonzales advised against application of the Geneva Conventions to al Qaeda and Taliban detainees.  He wrote that a “positive” reason for denying Geneva Convention protections to these detainees was that denial of the protections would “substantially reduce[] the threat of domestic criminal prosecution under the War Crimes Act.”  Gonzales went on to highlight for the President that some of the War Crimes Act provisions apply “regardless of whether the individual being detained qualifies as a POW.” 

The last item on Gonzales’ list of “positive” reasons for the President finding the Geneva Conventions protections inapplicable was the most disturbing.  Gonzales stated to the President that, “it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act].  Your [the President’s] determination [of inapplicability of the Geneva Conventions] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”  In other words, Gonzales specifically advised the President to find the Geneva Conventions protections inapplicable to these detainees as a way to block criminal prosecutions under the War Crimes Act.

In addition, reports about the development of the August 1, 2002 Justice Department’s Office of Legal Counsel memorandum on the definition of “torture” (generally known as one of the “Bybee memos”) similarly show the tremendous efforts of top government officials to avoid prosecution for acts that they authorized or ordered.  The memo interpreted the word “torture” in the federal Anti-Torture Act and the U.S.-ratified Convention Against Torture to prohibit only a narrow band of acts.  The interpretation of the criminal statute was so wrong that, on December 30, 2004, the Justice Department issued a new memorandum from its Office of Legal Counsel that rejected the earlier interpretation and found a much wider band of acts are criminal.

But for nearly two years, at least some persons in the Administration took the position that the criminal code did not prohibit certain acts that: 

-         cause severe pain, but do not cause pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death;”

-         cause severe physical “suffering,” but do not cause severe physical pain;

-         are taken with knowledge that severe pain or suffering is “reasonably likely to result from” the act, but the act was not taken with the “precise objective” of inflicting such harm; or

-         are taken pursuant to presidential directive.

These discussions of how to avoid liability were not simply abstract exercises for obscure Office of Legal Counsel lawyers.  In fact, a January 5, 2005 Washington Post article stated that one of the authors of the August 1, 2002 memorandum, then-Deputy Assistant Attorney General John Yoo, briefed Gonzales several times on the memorandum during its drafting.  The Post also reported that Yoo also briefed Attorney General John Ashcroft, Vice President Cheney’s counsel, the general counsel for the Defense Department, and the acting general counsel for the CIA.  In addition, the Post described a meeting that included detailed discussions of “methods that the CIA wanted to use, such as open-handed slapping, the threat of live burial and ‘waterboarding’--a practice that involves strapping a detainee to a board, raising the feet above the head, and dripping water onto the head . . . [which] produce[s] an unbearable sensation of drowning.”

Congress should not be complicit in the deliberate and concerted work by top government officials--beginning as far back as January 25, 2002--to insulate themselves from criminal prosecution for authorizing and ordering criminal acts.  Congress should revise these provisions and not provide such broad immunity to the top government officials, while privates and sergeants bear nearly all of the criminal liability for the torture scandal.

Congress Should Bar All Evidence Obtained by Torture and Abuse--Including Evidence Literally Beaten Out of a Witness, and Evidence Obtained in Torture Cells in Syria, Jordan, and Egypt

Section 4 of S. 3930 explicitly authorizes the use of evidence obtained in violation of the provisions of the McCain anti-torture amendment, so long as the evidence was obtained prior to its enactment nine months ago.  As a result, evidence that was literally beaten out of a witness--and evidence obtained in torture cells run by countries such as Syria, Jordan, and Egypt--could be the basis for a conviction of a detainee in an American proceeding.

Congress has never before authorized federal prosecutors to use evidence obtained by torture or abuse in any criminal trial.  It would allow convictions based on statements made by persons who may have been willing to make up anything to have the torture and abuse stop.  And it would allow evidence obtained by countries with horrific human rights records to be used in an American proceeding.

During several congressional hearings, the nation’s top Judge Advocates General for the four uniformed services all agreed that coerced evidence has no place in any American courtroom and no place in any American military commission.  Congress should amend this provision to bar categorically all evidence obtained through cruel, inhuman, and degrading treatment of any person.

Congress Should Ensure That, at Minimum, Those Acts Which Violate the McCain Anti-Torture Amendment Remain Criminal Acts Under the War Crimes Act

Subection 8(c) of S. 3930 restates the McCain anti-torture amendment, as enacted last year.  However, unlike the Senate Armed Services Committee-reported bill on military commissions that made violations of the McCain amendment a war crime, S. 3930 restates the McCain amendment as a prohibition separate from the War Crimes Act.

As a result of this change from the committee-reported bill, there is a significant risk that courts may infer that Congress specifically excluded violations of the McCain amendment from the War Crimes Act.  The result of such analysis could be a conclusion by courts that Congress did not intend for violations of the McCain amendment’s prohibitions to be the kinds of acts that violate the War Crimes Act, and therefore the new provisions of the War Crimes Act must require acts that are more severe than many of the acts that violate the McCain amendment.

Congress should avoid these possible interpretations of the revamped War Crimes Act by putting the McCain amendment in the War Crimes Act itself.  By doing so, it would bolster compliance with the McCain amendment and avoid the possible result of a restatement of the McCain amendment in a non-criminal subsection being a cause for courts to raise the bar on acts that violate the criminal subsection of the legislation.

The ACLU strongly urges you to oppose S. 3930 until and unless all of these changes have been made.   

Sincerely,            

Caroline Fredrickson 
Director          
Washington Legislative Office                             

Christopher E. Anders
Legislative Counsel
Washington Legislative Office

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