Military Commissions Act of 2006

The Military Commissions Act of 2006 is a U.S. law that authorizes trial by military commissions. It was enacted to regularize some of the process of charges against persons captured and considered enemy combatants.

It defines, for U.S. purposes, an "unlawful enemy combatant" "as a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces) or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." Competent tribunal is a term used in Article 5 of the Third Geneva Convention. There is controversy if the tribunals defined by this Act are in full compliance with that Article.

Military Commissions are under the authority of Susan Crawford, a retired judge and Department of Defense attorney. Appointed by the Bush Administration, she has rejected some of its positions, specifically the military prosecution of Mohammed al-Qahtani, because the evidence was tainted by torture.

BG Thomas W. Hartmann, U.S. Air Force, had been heading the process prior to her appointment, when he was named her legal advisor. CAPT Keith J. Allred, U.S. Navy, barred him, in mid-2008, from further participation in the hearings, ruling that he was biased toward convictions; Air Force COL Morris D. Davis, chief prosecutor, had complained that Hartmann, according to the New York Times, "interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture."

George W. Bush Administration

In Executive Order 13440, President George W. Bush reaffirmed, in July 2007, his determination: "that the Military Commissions Act of 2006 defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions." He approved CIA programs that:

• Do not torture, as defined by 2340 of title 18USC2340 or constitute other acts defined by 18USC2441
• Violate the Military Commissions Act of 2006 or the Detainee Treatment Act
• Are applied to an alien detainee, who is determined, by the Director of the Central Intelligence Agency (DCIA) "to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and [is] likely to be in possession of information that:
  • could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
  • could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces"
• Are determined, by the DCIA, "based upon professional advice, to be safe for use with each detainee with whom they are used
• Provide detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.

Obama Administration

Shortly after taking office, President Obama revoked Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by CIA from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.