ACLU Letter to the Senate Strongly Urging Opposition to S. 3930, the Military Commissions Act of 2006 (9/25/2006)
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:
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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