Background Briefing

Court-Stripping Provisions

10. How does the MCA impact detainees’ ability to raise claims in U.S. courts regarding their treatment or detention?

The MCA strips all non-citizens (including longtime legal residents of the United States) in U.S. custody – anywhere around the world – of the right to file a claim for habeas corpus to challenge the legality of their detention before an independent court or to seek relief from mistreatment, including torture. While detainees who are brought before CSRTs or military commissions will still have a right of appeal to civilian courts, any detainee who is not brought before a CSRT or military commission has no way of getting a court to hear his claims.

The law’s prohibitions apply even after a detainee has been released. As a result, detainees who have been tortured or otherwise mistreated are forever prevented – even once released – from going to a U.S. court to air what has happened to them and to seek some sort of redress or compensation.

11. How do the court-stripping provisions in the MCA change current law?

In December 2005, Congress passed the Detainee Treatment Act, which prevents Guantanamo Bay detainees from bringing any future habeas challenges to their detention, as well as any other claims challenging their conditions of confinement or treatment. The MCA extends these court-stripping prohibitions and makes them retroactive and applicable to non-citizens in U.S. custody anywhere in the world. Unless found to be unconstitutional, these provisions could result in courts summarily dismissing more than 200 pending habeas cases brought on behalf of the Guantanamo detainees and a handful of detainees in Afghanistan.  

12. Do these court-stripping provisions violate international law?

Yes. International law requires that persons subjected to human rights violations have a right to an effective remedy. The United States has ratified – and is therefore obligated to comply with – the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). These multinational treaties require that detainees have access to independent courts to challenge the legality of their detention and to raise and seek redress for torture and other abuse.3 

13. How does the MCA limit the use of the Geneva Conventions in U.S. courts? 

The law prohibits anyone from ever raising claims under the Geneva Conventions in lawsuits against the United States or U.S. personnel. If this law had been in place previously, Hamdan would have been prevented from bringing one of the most important claims in his case – that the commissions set up by President Bush violated the fair trial requirements of Common Article 3 of the Geneva Conventions. 

3 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 9, para. 4.; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, art. 13, art. 14, para. 1.