On October 2, 2006, the Center for Constitutional Rights (CCR) announced that it had filed the first new legal challenges to key provisions of the Military Commissions Act (MCA) passed by Congress last week. CCR filed a habeas petition on behalf of 25 detainees held at Bagram Air Force Base in Afghanistan who have been detained without charge or trial. Mohammed v. Rumsfeld directly contests the MCA's denial of due process to non-citizens held in U.S. custody.
There are an estimated 500 men detained in U.S. custody at Bagram. Though some have been held for years, none of these men has ever received a hearing of any sort. Bagram has been the site of notorious examples of abuse - including abuses that led to the December 2002 deaths of two Afghan detainees.
CCR Staff Attorney Gitanjali Gutierrez said: "Bagram should be synonymous with Abu Ghraib and Guantánamo Bay. These are abusive environments where the rights we all hold dear are regularly violated. Habeas is the only chance the men there have of ever responding to the allegations against them and demanding accountability for their treatment in court."
Mohammed v. Rumsfeld raises challenges to the Military Commissions Act's sweeping definition of "unlawful enemy combatant," denial of due process, and rejection of accountability for torture and abusive interrogations:
• The MCA's sweeping definition of "unlawful enemy combatant" would include many people not engaged in hostilities against the United States. The MCA writes the term "unlawful enemy combatant" into law for the first time - and with a definition so expansive that it includes U.S. citizens and those who are not directly engaged in hostilities against the United States but who "materially support" hostilities. Further, the MCA sanctions the President or Secretary of Defense's unilateral declaration that an individual is an "unlawful enemy combatant." The MCA even attempts to deny due process to individuals who are not yet classified as unlawful enemy combatants under this broad definition, but also those who are "awaiting such determination" - a definition that could be read to include all non-citizens held in U.S. custody in the U.S. or abroad.
• Despite being held indefinitely in U.S. custody, all detainees at Bagram would be denied habeas relief - or any ability to challenge any aspect of their detention or treatment. The MCA purports to revoke the right of non-citizen detainees to bring a habeas petition to challenge the legality of their detention. For detainees not held at Guantánamo, the MCA further purports to deprive them of any right to challenge any aspect of their detention, treatment, trial or conditions of confinement through any means.
• The law severely limits accountability for torture and abusive interrogations for those detained in U.S. custody at Bagram and around the world. Common Article 3 of the Geneva Conventions prohibits violence to detainees and "outrages upon personal dignity, in particular humiliating and degrading treatment." The MCA permits the President to interpret any violations of the Geneva Conventions which do not constitute "grave breaches" and amends the War Crimes Act so that only grave breaches of Common Article 3 can be prosecuted. The President's prior interpretations prompt great concern about unchecked executive interpretations of Geneva Convention violations. As the MCA does not allow those held in U.S. custody to sue over the conditions of their detention, torture prohibitions such as the McCain Amendment to the Detainee Treatment Act will be unenforceable without habeas rights.
CCR Executive Director Vincent Warren said: "Last week, Congress voted to have the United States join the ranks of the nations of the world that have authorized indefinite detention without trial and torture without accountability. For over two hundred years, our Constitution has guaranteed that we would not sacrifice our democratic principles even in times of crisis. In this first challenge to the MCA, we demand that the Administration uphold the Constitution which has, and should continue to be, the pillar of living in a democratic society."