Commentary: The Military Commissions Act and Habeas Corpus

Beth Wellington is a Roanoke, Virginia based poet and journalist. She is a contributing editor to the New River Free Press, a book reviewer for the Roanoke Times and a member of the Southern Appalachian Writers Cooperative (SAWC) and the Appalachian Studies Association. From 1980 to 1997, she was the founding Executive Director of New River Community Sentencing, Inc. in Christiansburg, Virginia and its predecessor, New River Community Action’s Community Sentencing Program. She contributes to both and Beth’s blog on culture and politics is The Writing Corner.

Links to archive of articles by Beth Wellington.

The incoming Chairman of the Senate Committee on the Judiciary, Patrick Leahy (D-VT) gave a speech December 13, 2006 at his alma mater, Georgetown University Law Center. In “Ensuring Liberty And Security Through Checks And Balances: A Fresh Start For The Senate Judiciary Committee In The New 110th Congress.” (prepared text, video), he opened his remarks by saying:

I came to the Senate during the ebb tide of Watergate and Vietnam. In my 32 years since then in the Senate, I have never seen a Congress so willfully derelict in its duties as during this Administration. This has been an unfortunate chapter in Congress’s history, a time when our Constitution was under assault, when our legal and human rights were weakened, when our privacy and other freedoms were eroded. This election was an intervention. The American people rose up to take away Congress’s rubber stamp…

The 109th Congress rubber stamped George Bush’s agenda with the renewal of the Patriot Act and with the September 29, 2006 passage of the Military Commissions Act of 2006 [S. 3930].

Having followed the reports of U.S. torture of detainees by Human Rights Watch and others, I considered the administration’s position as stated on September 6, when President Bush discussed the creation of military commissions to try terrorist suspects:

I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it — and I will not authorize it.

And again on October 17, when the president made a statement upon signing the Military Commissions Act:

As I’ve said before, the United States does not torture. It’s against our laws and it’s against our values.

And on October 23, when U.S. Attorney Alberto Gonzales represented the President’s position in a speech at the JAG Keystone Leadership Conference saying that the Military Commissions Act of 2006 offered:

greater legal rights than are provided to lawful prisoners of war under the Geneva Conventions.

Andrew Sullivan (email, blog), author of The Conservative Soul: How We Lost it, How to Get it Back, may have said it best in his September 24 commentary in the Sunday Times, “Torture by any other name is just as vile.”


On October 12, 2006, Jennifer K. Elsea, a Legislative Attorney with the American Law Division of the Congressional Reference Service (CRS) released her report, “The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice.

Elsea’s introduction provides a succinct history of the administration’s use of military commissions, which started barely two months after 9-11.

On November 13, 2001, President Bush issued a Military Order (M.O.) pertaining to the detention, treatment, and trial of certain non-citizens in the war against terrorism. Military commissions pursuant to the M.O. began in November 2004 against four persons declared eligible for trial, but proceedings were suspended after a federal district court found that one of the defendants could not be tried under the rules established by the Department of Defense (DOD). The D.C. Circuit Court of Appeals reversed that decision in Rumsfeld v. Hamdan, but the Supreme Court granted review and reversed the decision of the Court of Appeals. To permit military commissions to go forward, Congress approved the Military Commissions Act of 2006 (MCA) (H.R. 6166/S. 3930), conferring authority to promulgate rules that depart from the strictures of the Uniform Code of Military Justice (UCMJ) and possibly U.S. international obligations.

Her report compares military commissions as envisioned under the act with those which would have operated under the rules established by the Department of Defense, and to general military courts-martial conducted under the Universal Code of Military Justice. She provides a table contrasting the composition, powers and jurisdiction of the three types of military tribunals and a second one which compares procedural safeguards.

Perhaps the best detailed discussion of the history of military commissions and the writ of habeas corpus can be found in the December 13, 2006 order of Judge James Robertson, dismissing Hamden v. Rumsfeld after passage of the Act. (See University of Pittsburgh School of Law Professor Bernard Hibbitts’ extensive analysis of the case, on the Jurist website.)


On July 5, 2006, John Dean published an interesting article in FindLaw’s Writ, “Senators Kyl and Graham’s Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case,” which provides background on the the events leading up to the Act:

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Dean goes on to talk about the efforts of two Senators to remove court jurisdiction during passage of the Detainee Treatment Act of 2005 which was part of H.R. 2863, the “Department of Defense Appropriations Act, 2006.”

This was John McCain’s (R-AZ) effort to outlaw the torture of military prisoners after the Abu Ghraib scandal. In his analysis of the act in the Spring 2006 issue of the Harvard Human Rights Journal, Arsalan M. Suleman, J.D. candidate, class of 2007, concludes:

The Abu Ghraib scandal has forever tainted the U.S. armed forces and America’s moral standing globally. Congress attempted to legislate a solution to the issue of detainee abuse and torture by passing the Detainee Treatment Act of 2005. While Sections 1002 and 1003 of the DTA, originating from Senator McCain’s S.Amdt. 1977, may help bring some legal clarity to the situation, there are other aspects to the detainee abuse and torture issue that have yet to be addressed, and still other ways in which a determined President could easily ignore or circumvent the restrictions in the DTA. Indeed, Section 1004 of the DTA helps to immunize officials from accountability in violating the previous two sections, and Section 1005 limits the ability of detainees to access the domestic U.S. legal system. Overall, the Detainee Treatment Act of 2005 is a feeble and incongruous attempt to restore America’s credibility as a country that does not practice or condone torture and the use of cruel, inhuman, or degrading treatment or punishment.

Despite the weakness of the measure, in a signing statement released December 30, 2005. President Bush wrote,

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

And yet in the already mentioned discussion of military commissions, the President immediately followed his comments denying torture with this statement:

Last year, my administration worked with Senator John McCain, and I signed into law the Detainee Treatment Act, which established the legal standard for treatment of detainees wherever they are held. I support this act.

According to the Encyclopedia Britannica, the common law right of habeas corpus predates even the Magna Carta. Merriam Webster dictionary tells us the term came from Middle English via Medieval Latin and means literally, “you should have the body.” The public, responding to abusive detentions without legal authority, pressured the English Parliament to adopt The Habeas Corpus Act of 1679, which established the principal in writing. The United States Constitution later enshrined the right in Article 1, Section 9:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Although neither rebellion nor invasion seemed to apply, by September 22, 2006, Senator Mitch McConnell (R-KY) introduced the Military Commissions Act of 2006 that day with two powerful co-sponsors: Senate Majority Leader Bill Frist (R-TN) and Senate Committee on Armed Services Chairman John Warner (R-VA).


In Leahy’s December 13, 2006 speech, he said,

our current Chairman, Arlen Specter…has accomplished much and has tried to accomplish even more, under difficult circumstances and with incredible stamina.

Three days after the September 22, 2006 introduction of S. 3920, the Senate Committee on the Judiciary under Specter’s (R-PA) chairmanship, held a hearing, “Examining Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review.” The first witness was Retired Rear Admiral John D. Hutson who now serves as dean and president of the Franklin Pierce Law Center in Concord New Hampshire. Hutson was one of eight retired military commanders who had signed a joint letter to President Bush September 7, 2004 to:

express our deep concern about the serious allegations of wrongdoing in U.S. military and intelligence detention and interrogation practices in the global “war on terror.” We urge you to commit – immediately and publicly – to support the creation of a comprehensive, independent commission to investigate and report on the truth about all of these allegations, and to chart a course for how practices that violate the law should be addressed.

At the hearing, Hutson emphasized the centrality of habeas corpus.

A persuasive argument can be made that the Writ of Habeas Corpus, the Great Writ, is the single most important bulwark in protecting our rights and freedoms. It is virtually sacrosanct, and those who have suspended it have often been treated harshly by history. That is why these hearings are so important and the action Congress is being asked to take is so momentous. This is an historic moment.

The Great Writ breathes life into all our fundamental and most cherished rights and freedoms. None of them have value if potential violations can’t be tested in court. What value is Freedom of Speech if those who speak out are incarcerated and not able to have their cases heard?

As with all our rights, we must be tremendously cautious when we consider picking and choosing who may enjoy them and be protected by them.

It is too facile to say that the men detained in Guantanamo “are all terrorists,” “the worst of the worst, and “all killers.” Maybe they are. Maybe they aren’t. The point of habeas corpus is to answer those questions. If we strip them of that right and the courts of jurisdiction to hear their cases, we will never know the answers to those very important questions.

Hutson emphasized that the writ had not been suspended during WWII and that its availability gave legitimacy to the imprisonment of enemy combatants.

No prisoner contested the very fact of being an enemy soldier, as many of the Guantanamo detainees do. And there were no allegations in those prison camps of abuse, coercive interrogation, sleep deprivation, and induced hypothermia.

The fact is that it is not at all obvious to many Americans and to the world community that all the detentions at Guantanamo are as clearly justified as those in World War II or in other conflicts. The existence of the right of habeas corpus will go a long way to resolving those concerns; conversely, eliminating that right will only give rise to greater concern and doubt.

He posited:

There are two ways to consider the question of stripping the courts of their jurisdiction to hear habeas petitions.

One analysis is legal. Is it constitutional? The other is pragmatic. Even if it is legal, is it wise? I believe that the legislative proposal that Congress is being asked to pass is both unconstitutional and, more importantly, unwise.

Specter also heard from four others, whose arguments against the bill sandwiched the comments of two supporters.

  • Thomas P. Sullivan, who represents seven Saudi Arabian men currently detained at Guantanamo and three Saudi men who were released in May, 2006;
  • Bruce Fein, attorney and conservative pundit, who has called for Bush’s impeachment based on his violation of the Constitution;
  • Lt. Commander Charles Swift, Hamden’s military defense counsel; and
  • Senator Leahy.

Then, on September 28, when the Act came to the floor, Specter tried to restore habeas corpus, which was narrowly defeated 51 to 48, when the only Republicans voting yea besides Specter were Chaffee (RI), Smith (OR) and Sununu (NH). Nelson (D-NE) voted no and Snowe (R-ME) didn’t vote. Specter’s 8 co-sponsors were all Democrats:

  • Leahy (VT)
  • Dorgan (ND)
  • Dodd (CT)
  • Dayton (MN)
  • Feingold (WI)
  • Clinton (NY)
  • Bingaman (NM)
  • Obama (IL)

When the Senate voted 65 to 34 to pass the Act on September 28, the only Republican voting nay was Lincoln Chaffee. Snowe did not vote. Of the 7 Democrats in the “Gang of Fourteen”* only Byrd (WV) and Inouye (HI) voted against the bill. Supporting it were:

  • Carper (D-DE)
  • Johnson (D-SD)
  • Landrieu (D-LA)*
  • Lautenberg (D-NJ)
  • Lieberman (D-CT)*
  • Menendez (D-NJ)
  • Nelson (D-FL)
  • Nelson (D-NE)*
  • Pryor (D-AR)*
  • Rockefeller (D-V)
  • Salazar (D-CO)*
  • Stabenow (D-MI)

Many of these were targeted with negative ads by the Club for Growth in conjunction with that group’s campaign to end the Estate Tax. The Club has announced its agenda on its website:

Today, there are at most some 100 members of the House and roughly 15-20 members of the Senate who are truly dedicated to prosperity and limited government. The goal of the Club for Growth is to double and even triple those numbers within the next ten years using a whole range of tactics. Only by achieving that objective are we likely to achieve policy victories in the pro-growth agenda, such as tax cuts and other limited government issues.

Lincoln Chaffee’s defeat may have come from the right as well as the left. Consider these ads by the Club accusing the Rhode Island Republican of being a tax hiker and out of touch.


The House passed the Military Commissions Act September 29, 2006 – 250 to 170 – with only 7 Republicans voting against it: Bartlett (MD), Gilchrest, Jones (NC), LaTourette, Leach, Moran (KS) and Paul. Of the 32 Democrats voting yea, the most notable were Harold Ford Jr. (TN) who lost his bid for a Senate seat and John Salazar (CO), whose brother Ken serves in the Senate.

Then, on December 5, 2006 with Congress about to adjourn, Specter introduced the Habeas Corpus Restoration Act of 2006, S. 4081, with Leahy as his co-sponsor. The text of S. 4081 is available from THOMAS, and in the Congressional Record, starting on page S11197, along with introductory comments by Specter and Leahy.

Steven Aftergood at the Federation of American Scientists announced the introduction of the Act on December 6, calling it

another sign of shifting ground in the post-election Congress.

That day, I checked Google news and found no coverage. The next day only one newspaper, The New York Sun, had run a short item “Bill to Restore Habeas Corpus introduced.” As I write this a week later, the Sun remains the only newspaper to make mention of the Act, despite Leahy’s news release of December 5. [beSpacific posted about the Act on December 6.]

In an email, I asked Aftergood for his take on the timing of the introduction. He responded,

I think the introduction of S. 4081 is more than an empty gesture. It is a hopeful sign, and an indicator of the forthcoming change in the congressional climate. Speculatively, it may reflect a guilty conscience on the part of Senator Specter, who made it possible for the Military Commissions Act to be enacted in the way it was, and made it necessary for habeas corpus to be “restored.” But even if so, that’s beside the point. The point is that from here on out, Congress is going to set a higher standard than it has been lately.


The Military Commissions Act threatens not just terrorists, but, as Senator Leahy noted in his testimony September 26, it

would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention. The Administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would suffice that the alien was “awaiting [a] determination” on that issue. In other words, the bill would tell the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes, that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants.

Detained indefinitely, and unaccountably, until proven innocent.

Others have gone further to state that it threatens American citizens. Marjory Cohn (email, website), professor at Thomas Jefferson School of Law in San Diego and president of the National Lawyers Guild, writing September 30, 2006 for the Legal Television Network, noted in her article, “Military Commissions Act: Unintended Consequences?”

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, “unlawful enemy combatants.”

She added,

Anyone who donates money to a charity that turns up on Bush’s list of “terrorist” organizations, or who speaks out against the government’s policies could be declared an “unlawful enemy combatant” and imprisoned indefinitely. That includes American citizens.

In addition to both those criticisms, the Center for Constitutional Rights added in its briefing paper notes that:

The definitions of rape and sexual assault are narrower than under international
law and have higher thresholds for proof.

It adds that the law authorizes:

  • authorizes the President to determine what constitutes torture;
  • authorizes the use of evidence obtained by coercion;
  • authorizes the use of hearsay; and
  • authorizes retroactive immunity for U.S. military and intelligence officials for
    abuses that occurred at sites such as, Abu Ghraib, Guantánamo, Bagram and secret CIA facilities.

On September 28, 2006 on the eve of the passage of the Military Commission Act, the Center had filed a habeas corpus petition for 25 detainees held without charge at Bagram Air Base in Afghanistan and another petition on behalf of Majid Khan, one of the 14 ‘ghost detainees’ President Bush recently transferred to Guantánamo.

After Judge Robert order in honor of Human Rights Day on December 10, the The American Civil Liberties Union launched a campaign, asking citizens to write their members of Congress:

In the next session of Congress, you and your colleagues have the opportunity to end the human rights abuses committed by our government and restore American values and the rule of law. I strongly urge you to do so. The fact that we have engaged in torture, illegal kidnappings and indefinite detention in violation of the Geneva Conventions and other federal laws goes against the view of America that we all hold in our hearts.

I also urge you to correct the problems in the Military Commissions Act, which undermines protections against abuse and removes checks against unlawful imprisonment by our government. Under this law, people can be convicted, and possibly face the death penalty, based on evidence obtained as the result of horrific abuse. The law also guts the fundamental right of habeas corpus that in America, no one should be denied the protection of having a court determine whether his or her detention is lawful.

The United States has always been a champion of human rights throughout the world. But the actions of the current administration have taken away our leadership on human rights issues and fallen short of the American values that we all cherish. We can do better.


December 13, in his speech at Georgetown Law Center, Leahy said,

I look forward in the next Congress to working with Senator Specter, Senator Dodd and others to restore …[the] fundamental protections and the checks and balances on which the Constitution and our freedoms rest.

It remains to be seen whether the members of the 110th Congress can muster enough votes for such a program to stop a filibuster in the Senate and to override any presidential veto. But as Steven Aftergood emailed me on that day in response to my request for his assessment:

There’re no guarantees…of course– but at least now there is something to work with…it’s tough to calculate– I think one has to allow for the hopeful possibility that some of the MCA supporters will change their position in the next Congress.

Posted in: Congress, Criminal Law, Extras, Legal Research, Military