Background Briefing


On September 28, the U.S. Congress passed the Military Commissions Act of 2006 (MCA). Though its title refers to military commissions, the new legislation does much more than authorize and establish procedures for military tribunals of foreign terrorist suspects. As Congress’s first comprehensive foray into detainee policy, it affects an array of important issues, including the role of U.S. courts in protecting the fundamental rights of detainees, the implementation of the Geneva Conventions under U.S. law, and the prosecution of abuses by U.S. officials.

The MCA is Congress and the Bush administration’s response to the Supreme Court’s landmark ruling in Hamdan v. Rumsfeld on June 29, 2006. In that decision, the court struck down the system of military commissions that President George W. Bush had authorized in November 2001, finding that the president lacked congressional authorization to establish the commissions. The court also found that the commissions’ procedures violated basic fair trial standards required by  the Geneva Conventions of 1949, which it said mandated the humane treatment of all persons held by the United States in the “conflict with al Qaeda.”

The Hamdan decision also called into question the legality of the Bush administration’s secret CIA detention program. Hamdan made clear that the abusive interrogation techniques used by the CIA violated the United States’ obligations under international law and that CIA operatives could be held criminally liable for such abuses. 

In response to Hamdan, the administration pressed Congress to pass legislation that would have sharply limited the legal protections afforded detainees who were mistreated, and created military commissions little different from their discredited predecessors. While the administration did not get everything it wanted, the new legislation endorses several deeply troubling proposals that the administration wanted, some of which violate international human rights protections. Of primary concern, the legislation bars detainees from filing suit via the writ of habeas corpus to challenge the legality of their detention or to raise claims of torture and other mistreatment. The legislation also includes an overly broad definition of “combatant” that, if generally accepted, could subject civilians who provide virtually any kind of support to an armed group, including far from any battlefield, to military detention and trial. Human Rights Watch is also concerned that the military commissions established do not meet the fair trial provisions required by the Geneva Conventions and human rights law.

The MCA does not redefine – as the Bush administration had demanded – U.S. obligations under Common Article 3 of the Geneva Conventions, which mandates humane treatment of all detainees at all times during armed conflicts. While the law narrows the scope of prosecutable offenses under the War Crimes Act, it still criminalizes – at least for the future – the most abusive interrogation techniques that the administration is believed to have authorized and that the CIA is believed to have employed.

Because numerous provisions of the MCA run counter to the protection of human rights, Human Right Watch believes the legislation should be amended or repealed.  At the same time, we urge that all U.S. officials responsible for implementing the MCA do so in conformity with U.S. obligations under international human rights and humanitarian law. In the following questions and answers, we describe what the law does, and why we are so concerned about it.