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should reexamine these provisions, which conflict with our most rudimentary concepts of fair
process.

The Department of Defense has also offered rules of procedure to govern proposed military
commissions. It prepared these rules in secret and spurned offers from this and other bar
associations to review and comment on them. We expect to furnish you shortly with our
comments on these rules. In the meantime, we encourage Congress to convenc hearings on
these rules and allow the opportunity for comment which the Department of Defense has
sought to avoid.

Defining War Crimes. Another area of concern is the practice of introducing in the MCA
new definitions of "war crimes" that reach only a subset of the war crimes as defined by the
War Crimes Act of 1996 and that exist today under the Geneva Conventions, in particular as
regards the interpretation and enforcement of Common Article 3. The Association urges
Congress to carefully reconsider these deviations and return to prior U.S. practice.

-

The Concept of Enemy Combatant. The Administration has greatly expanded the concept of
"enemy combatant" as a means of indefinitely imprisoning persons allegedly suspected of
engaging in or supporting terrorism without charges and without any of the protections of the
criminal justice system. This concept originally used to allow the detention of enemy
soldiers captured during hostilities on a battlefield has been so stretched by the
Administration that, as it acknowledged in court proceedings, it could even include a "little
old lady in Switzerland who writes checks to what she thinks is a charity in Afghanistan but
really is a front for al-Qaeda.” In Re Guantánamo Detaince Cases, 355 F.Supp. 2d 443,
475 (D. D.C. 2005). We hope to provide our views on this problem in the near future.
Extraordinary Renditions and Black Sites. We urge Congress to investigate the practice
known as "extraordinary renditions", which involves the kidnapping and transfer of suspected
terrorists for interrogation in countries known to engage in torture. The cases of Maher Arar
and Khaled El Masri are notorious examples of this activity that violates domestic and
international law. Its damaging effect on our reputation and international relationships is
cvidenced by recent criminal prosecutions in Germany and Italy indicting CIA agents and
condemnation by the Council of Europe.

We hope the attached Report is useful. We look forward to supporting Congress' work on
these issues in the coming session.

REPORT CONCERNING PROVISIONS OF
THE MILITARY COMMISSIONS ACT OF 2006
RESTRICTING HABEAS CORPUS JURISDICTION
AND INTERFERING WITH JUDICIAL
ENFORCEMENT OF THE GENEVA CONVENTIONS

MARCH 2007

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Introduction

The Association of the Bar of the City of New York (the “Association”) submits this

Report to urge repeal of Section 7 of the Military Commissions Act of 2006 ("MCA") insofar as

This

strips federal courts of their statutory jurisdiction to entertain habeas corpus petitions from
non-U.S. citizens ("aliens”) detained by the United States as "enemy combatants."
provision condemns persons detained by the Executive-many of whom may be completely
innocent and wrongfully detained on the basis of mistaken or false information2-to indefinite
imprisonment, without any opportunity to challenge their detention through a procedure even
remotely resembling due process. It violates our most basic notions of justice and the long-
established role of the judiciary as a check on the Executive's power to deprive persons of their
liberty, a role that has its roots in Magna Carta. Congress, therefore, should act promptly to
restore the statutory right of habeas corpus as it existed prior to the enactment of the MCA and
the Detainee Treatment Act of 2005 (“DTA”)3 and as it was interpreted in Rasul v. Bush.*

The Association also urges repeal of provisions of Sections 5 and 6 of the MCA that
purport to bar any person from seeking judicial enforcement of rights guaranteed them by the
Geneva Conventions, that seem to prevent courts from considering foreign or international
courts' interpretations of the Conventions, and that might be read to expand the deference due
the President's interpretations of the Conventions. By barring individuals from judicially

} Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, §7, 120 Stat. 2600, 2636 (2006).
This provision is codified at 28 U.S.C. § 2241(e)(1).

2 This point is made in the report widely referred to as "the Seton Hall Report," in which Department of
Defense documentation of detainees' CSRT proceedings were reviewed. JOSHUA DENBEAUX &

MARK DENBEAUX, NO-HEARING HEARINGS: CSRT: THE MODERN HABEAS CORPUS? (2006),

available at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf (hereinafter SETON HALL
REPORT)

Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680 (2005).

" 542 U.S. 466 (2004).

This Report is directed to MCA provisions affecting the role of the Judiciary. A subsequent report

will address military commissions procedures. However, we note that Section 3 of the MCA purports

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enforcing the protections guaranteed by the Geneva Conventions and by interfering with the
Judiciary's role in interpreting and enforcing them, these provisions would effectively render the
Conventions unenforceable, except at the unreviewable discretion of the Executive. Sections 5
and 6 therefore cast doubt on the sincerity of the United States' commitment to the Conventions
and ultimately undermine the protections we expect others to afford our own armed forces.
The Stripping of Habcas Jurisdiction

I.

Congress initially sought to strip courts of jurisdiction to entertain habeas petitions of detainees at Guantánamno by enacting the DTA in 2005. In Hamdan v. Rumsfeld, however, the Supreme Court held that the DTA did not strip federal courts of jurisdiction to entertain pending habeas petitions. Section 7 of the MCA purports to address that aspect of Hamdan, and also deleres language in the DTA that limited the scope of the habeas stripping provision to detainees

at Guantánamo.

Specifically, Section 7(a) of the MCA amends the habeas statute by providing, in part:

No court, justice, or judge shall have jurisdiction to hear or consider 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.'

Section 7(a) further provides:

[N]o court, judge, or justice shall have jurisdiction to hear or consider any other
action against the United States or its agents relating to any aspect of the detention,
transfer, treatment, trial or condition of detention brought by any alien who is or was
detained by the United Sates and who was determined to have been an enemy
combatant or is awaiting such a determination.”

to bar invocation of the Geneva Conventions before military commissions in the same way Section 5
does in judicial procecdings. We therefore also urge repeal of Section 3 of the MCA.

6 126 S. Ct. 2749, 2769 (2006).

28 U.S.C. § 2241(e)(1).

1 28 U.S.C. § 2241(e)(2) (emphasis added),

The term "enemy combatant” is not defined by the MCA for purposes of the jurisdictionstripping provisions. However, Section 7 seems to contemplate the definition used by the Department of Defense (“DoD") in Combatant Status Review Tribunals ("CSRTs") for determining a detainee's status as an "enemy combatant," namely: "“an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners... [including] any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

ny

The limitations imposed on jurisdiction by Section 7(a) are subject to a single exception for limited review by the D.C. Circuit in certain narrow circumstances, as discussed below. Section 7(b) of the Act provides that the provisions of Section 7(a) are effective immediately upon enactment and apply "to all cases, without exception, pending on or after the date of enactment, which relate to any aspect of the detention, transfer, treatment, trial, or condition of detention of an alien detained since September 11, 2001.”10

There are now pending before the courts numerous questions about the scope and
constitutional validity of the habeas-stripping provisions of Section 7. The Constitution forbids
Congress from suspending the writ of habeas corpus except temporarily and only "when in Cases
of Rebellion or Invasion the public Safety may Require it." Recently, in a 2-1 decision, the
D.C. Circuit Court of Appeals held that the MCA required the dismissal of 63 pending habeas
corpus petitions of Guantánamno detainees, reasoning that the Suspension Clause did not deprive
Congress of the power to deny habeas corpus to Guantánamo detainees because, as aliens
detained outside the sovereign territory of the United States, such individuals do not have a

9 Memorandum from Deputy Secretary of Defense Paul Wolfowitz to the Secretary of the Navy, Order
Establishing Combatant Status Review Tribunals (Jul. 7, 2004), available at http://www.defenselink.
mil/news/Jul2004/d20040707revicw.pdf.

10 MCA § 7(b).

U.S. CONST. art. I, § 9, cl. 2.

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