Military Commissions Act of 2006

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Concept.png Military Commissions Act of 2006 Rdf-entity.pngRdf-icon.png
The torture bill

The Military Commissions Act of 2006 was signed into law by George W Bush on October 17, 2006. The act has been refered to as the "Torture Bill".


The law permits the federal government to:

  • Arrest and detain any non-U.S. citizen whom administration officials label an "enemy combatant."[1] [2] [3] [4] [5]
  • Do this off the battlefield and on U.S. soil.
  • Without giving the detainee access to a public court.
  • Indefinitely.
  • Torture the detainee.[6]


A quick reading of the Act gives the impression that torture, already illegal, is further outlawed. In fact, it redefine torture in ways not matching other sources.

The Act allows any interrogation method not causing "serious physical pain or suffering", defined as not causing:

  • a substantial risk of death;
  • extreme physical pain;
  • a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
  • significant loss or impairment of the function of a bodily member, organ, or mental faculty.

In a White House interview on October 24, one week after the Act became law, Vice President Cheney said:

"We don’t torture. That’s not what we’re involved in. ... But the fact is, you can have a fairly robust interrogation program without torture ... ."[7]

The Act makes torture legal retroactively.[8]

Crimes prior to this time – when torture was nominally illegal – have been made beyond prosecution.[9]

Supreme Court Case Hamdan vs. Rumsfeld, November 2004, mandated that the executive branch must not indefinitely deny habeas corpus to prisoners at Guantánamo Bay. (Habeas corpus is almost the oldest principle of Anglo-Saxon law and requires the government show the legal basis for holding a prisoner.)[10]

The Military Commissions Act does not mention "rendition," whereby the CIA flies the detainee to a foreign country and has him tortured there.


  1. The final version of the Act that Congress passed, if taken precisely as written, is restricted to foreigners. The existence of earlier versions containing no such restriction, and the complex legalese in which they all were written, led to some debate among commentators over whether the Act applies to U.S. citizens as well as foreigners. See "Final Military Commission Act Does NOT Apply To U.S. Citizens (?)" by Joel Skousen, World Affairs Brief.
  2. The worst parts of the Act may indeed apply to American citizens.
  3. "Bush signs Military Commissions Act" Jurist Legal News and Research, University of Pittsburgh School of Law. Oct 2006
  4. "The Legalization of Torture and Permanent Detention".
  5. "How to Make a Power Grab ‘Mundane’" by James Bovard. 18th Oct 2006.
  6. "Fact Sheet: The Military Commissions Act of 2006" The White House provided "Fact Sheet" includes statements such as "Provides legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs".
  7. "Interview of the Vice President by Scott Hennen, WDAY at Radio Day at the White House"] The Vice President's Office, October 24, 2006. CIA spokeswoman Michelle Neff: "While we do not discuss specific interrogation methods, the techniques we use have been reviewed by the Department of Justice and are in keeping with our laws and treaty obligations. We neither conduct nor condone torture." "Cheney confirms that detainees were subjected to water-boarding" McClatchy Newspapers October 25, 2006
  8. Specifically, it is backdated nine years]. From page 36 of the Military Commissions Act: "RETROACTIVE APPLICABILITY.—The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105–118 (as amended by section 4002(e)(7) of Public Law 107–273)."
  9. [We might pin some hope on the Supreme Court, but not much.] As Paul Craig Roberts points out (in "The Fault Lies in Ourselves," October 26, 2006), even before 9/11 many civil liberties had been so eroded that they were dead-letter rights, violated with impunity. "The Bush administration’s recent detainee and torture legislation merely took some of these dead-letter rights off the books. Even if the Supreme Court puts the rights back on the books, they have been eroded by legal precedent and neglect."
  10. "Immediately after Bush signed the act into law ..." "[the Justice Department] formally notified the U.S. District Court here [Washington D.C.] that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba. "... the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that ‘no court, justice, or judge’ can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future." "Court Told It Lacks Power in Detainee Cases" Washington Post October 20, 2006. "We Are All Torturers Now" The New York Times January 5, 2005.