The Orwellian Military Commissions Act of 2006

In three decisions in 2004 and 2006, the Supreme Court of theUnited States rejected the sweeping claims by President Bushthat his role as Commander in Chief entitled him to detain personsindefinitely and, if he chose, to subject them to war crimestrials before military commissions that did not have all ofthe procedural protections of courts martial. The Court's rulings,however, left open the possibility that, notwithstanding thetreaty obligations of the United States under the Geneva Conventions,Congress could authorize the President to take the steps thathe could not take unilaterally. In the Military CommissionsAct (MCA) of 2006, Congress did just that. However, despiteits title, the MCA does far more than authorize military commissions.Most significantly, it eliminates the statutory right of aliensdeclared by the government to be ‘unlawful enemy combatants’and detained indefinitely on that basis, to seek a writ of habeascorpus from a federal court. To be sure, the MCA provides someright of access to federal court for persons convicted of warcrimes by military commissions or found to be unlawful enemycombatants by a military ‘combatant status review tribunal’or equivalent body, but even then, it severely curtails opportunitiesfor judicial relief. In this and other respects, the MCA purportsto confer rights that, upon close inspection, prove illusory.For example, it uses the language of the Geneva Conventions,even while forbidding courts to look to international and foreignsources to construe that language. The MCA is, more broadly,an exercise in misdirection. It is, in a word, ‘Orwellian’.