Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a "flexible" standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. Human Rights First criticized the Administration's proposal for adding ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses.
In response to the administration's proposal, more than 45 retired senior military leaders wrote to members of the U.S. Senate expressing their opposition to redefining Common Article 3 on the grounds that it would compromise the safety of U.S. Service men and women. They were joined by Former Secretary of State Colin Powell and former U.S. Chairmen of the Joint Chiefs of Staff John Vessey, Hugh Shelton, and William Crowe, who also sent letters expressing their opposition to redefining Common Article 3.
Spearheaded by Republican Senators John McCain, John Warner, and Lindsey Graham, the Senate Armed Services Committee passed an alternative bill, sponsored by McCain, Warner, and Graham, that preserves Common Article 3. The Administration then agreed to negotiate with the key Senators, and a compromise was reached on September 21, which preserved the meaning and requirements of Common Article 3. Human Rights First welcomed this aspect of the compromise. Human Rights First opposed the final version of the Military Commissions Act, however, because it contained a number of provisions that raised serious concerns about compliance with the Geneva Conventions and with fundamental fair trial and due process principles. Among the most troubling aspects of the Military Commissions Act are provisions that purport to:
Grant unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants”, and possibly to detain indefinitely, an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States
Deny independent judicial review, through habeas, of detentions of U.S. legal permanent residents and non-citizens
Limit the sources of law to which the courts may look and the scope of review on appeal
Narrow the scope of the War Crimes Act and seek to eliminate accountability for past violations of the law
Permit evidence obtained through coercion to be used in the military commission proceedings, with certain limitations
Permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence.
Restrict full disclosure to the accused of exculpatory evidence
Give the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials
Despite the urging of Human Rights First and other groups and individuals to reject the bill, U.S. Congress passed the Military Commissions Act on September 29, 2006. The Act was presented to President Bush on October 10, 2006 and signed into law on October 17, 2006.
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