Military Commissions Act of 2006
On October 17, 2006, Congress formally responded to the Court’s rebuke of Executive power in Hamdan. In collaboration with the Executive branch, Congress passed the Military Commissions Act (MCA),[1] a statute that struck back at three of Hamdan’s key statutory holdings; that (1) Congress had not authorized the Executive’s military commissions; that (2) the military commission violated the Uniform Code of Military Justice (UCMJ); and that (3) the DTA had not stripped the federal courts of jurisdiction over Guantanamo detainees’ pending habeas claims.[2]
The MCA explicitly satisfied the call for congressional authorization by granting the Executive “express authority to convene military commissions to prosecute those fitting the definition under the MCA of ‘alien unlawful enemy combatant.’”[3] In granting this authority, Congress simultaneously dealt with the Supreme Court’s concern over UCMJ violations by extending the power of the President “to promulgate rules that depart from the strictures of the Uniform Code of Military Justice (UCMJ).”[4]
Beyond formalizing congressional authorization to convene military commissions, Congress passed the MCA in order to overrule Hamdan’s restricted reading of the DTA’s court-stripping provisions. In Hamdan, the Supreme Court had limited its interpretation of the DTA to deny federal courts jurisdiction over Guantanamo detainees’ habeas claims that had been filed subsequent to the statute’s enactment. The MCA explicitly broadened the language of the federal habeas statute so as deny federal courts jurisdiction over pending claims as well.
MCA § 7(a) begins by expanding the court-stripping language of the DTA, stating that: “[n]o court, justice, or judge shall have jurisdiction to hear or consider” either “an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination,” or “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been property detained as an enemy combatant or is awaiting such determination.”[5]
Section 7(b) then explicitly addresses the issue of pending cases, as it mandates that the above amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.”[6]
In response to the MCA’s unequivocal language, the D.C. Circuit dismissed all pending Guantanamo habeas cases on its docket.[7]
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[1] Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, (codified in scattered sections of 10 U.S.C., 18 U.S.C. & 28 U.S.C.), invalidated in by Boumidiene v. Bush, 553 U.S. 723 (2008)(hereinafter MCA). For a very detailed explanation of the MCA, see Jennifer K. Elsea, Research Serv., The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice 6 (2006), available at http://fas.org/sgp/crs/natsec/RL33688.pdf.
[2] See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
[3] Elsea, supra note 1, at 6. See MCA § 3.
[4] MCA § 4; Elsea, supra note 1, at 1. ,
[5] MCA §7(a)
[6] MCA §7(b)
[7] Marc D. Falkoff, Back to the Basics: Habeas Corpus Procedures and Long-Term Executive Detention, 86 Denv. U. L. Rev. 961 (2009).