Friday, September 29, 2006

The facts of the Military Commissions Act

By Diane Silver

[updated 9/30 12:30 p.m. CST with pdf text of the act]

It's time to move beyond emotion and to figure out exactly what Congress and President Bush have just done to us.

My goal with this post, which I intend to keep updating, is to collect in one place as many credible sources on this new law as possible. I want to really understand this thing and, thus, intend to collect not just those who critique the act, but also those who support it.

You all know how I feel, so obviously, I'm going to start with a majority of links from those opposed. This is for no other reason than the fact that so far, all I've read are opponents. However, I do intend to post links to supporters.

I'm looking for the commentary and reporting of people with some expertise in this area. Bush, Cheney and all the other politicians don't quality unless they are administration officials stating specifically how they intend to enforce this law. I'm starting with a smattering of links and intend to add others as I find them.

By the way, I do think morality is an important part of this debate, so I will include links to comments from religious and spiritual leaders when and if I find them.

Some of these categories will be blank to start, but send me links as you find them. New links will be added as I get them. Corrections will be made as I'm aware of errors.

Please post links in the comments section or send them to


The text of the bill as passed by both houses of Congress is now available in pdf, printable format.


The Ball is Now in the Supremes' Court
Andrew Cohn - Washington Post
With the passage of this terrible law, the "other" two branches of government have combined to try to ace the judiciary out of the detainee business.
Court Challenge to New Detainee Law to Come in Days
TPM Muckraker reporting on Congressional Quarterly story


The White House Warden
Yale Law & Political Science Professor Bruce Ackerman
The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

(Yale Law Professor) Jack Balkin on Laws Without Judicial Recourse
ACS Blog
The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations.

Does the Military Commissions Act apply to (U.S.) citizens?
Yale Professor Balkin at his own blog, Balkinization
(1) Yes, a few parts of the MCA do apply to citizens; and (2) the MCA is probably unconstitutional in many of its applications to citizens; and (3) some constitutional applications of the MCA to citizens are deeply troubling.

What Hamden Hath Wrought

ACLU Analysis of the Senate Bill
This analysis -- in the form of a letter to senators -- was written before the bill was passed, but since the bill was not amended, the criticisms still stand.
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.


Detainee Bill Shifts Power to the President
New York Times (registration required) Analysis includes criticism & support & theorizes that the legislation may lead the Supreme Court to decide that it does not have the power to hear challenges to military commissions.
In effect it allows the president to identify enemies, imprison them indefinitely and interrogate them -- albeit with a ban on the harshest treatment -- beyond the reach of the full court reviews traditionally afforded criminal defendants and ordinary prisoners...Over all, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president.

Still looking for detailed information & links on:

Remember, folks, this is a work in progress. I need your help to finish it.


Anonymous said...

To see the truth about this bill goto
As you will see, this bill does not effect US citizens whatsoever!

Nancy Jane Moore said...

Yale Law Professor Jack Balkin says the bill does apply to citizens. If you're not skilled at analyzing legislation, you may not realize that you have to read any new law in relationship to other laws it is connected to or refers to. Since you have given me no reason to think that you have as much skill in doing that as Prof. Balkin has -- or for that matter, as much skill as I have -- I'm not inclined to accept your viewpoint, but rather to assume that the right is attempting to whitewash the legislation.
We do appreciate your provision of a link to a website supporting the bill, however.

Jamie Lynk, Sarasota FL said...

Diane -
As part of your "call to action", I just email Bill Nelson (US Senator, D-FL and running for re-election) and Jim Davis (US Representive, D-FL and running for Governor) that "I will NEVER understand nor accept" how they could vote for "The Military Commissions Act of 2006." I acknowledged that while they are running for election, how could they essentially sell-out themselves and their country by voting for that shoddy piece of legislation (and I dignify it by calling it legislation). I should've written before the vote; but I never really believed they would vote for it. How naive and Shame on me.
In addition, all this concern about Foley who I termed a "very conflicted human being" in an earlier blog response to ITM. While this his conduct (sexually explicit emails to teenage boys) is un-acceptable; it is not a Constitutional Crisis. The Radical Right will probably try and make this some kind of "gay and lesbian" issue; but the guy is a Pedophile. Let's keep those two distinctions separate.