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Mobilizing Against the Military Commissions Act of 2006


Publication Date: 
November 06, 2006
Journal Article
Bibliography: Stephanie Brewer, James L. Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, & Deborah Popowski, Mobilizing Against the Military Commissions Act of 2006, 1 Harvard Law & Policy Review (Online) (Nov. 6, 2006).


Students and professors mobilized against the Military Commissions Act of 2006, submitting a petition to Congress with the signatures of more than 600 legal academics.

Full Text of Publication

Mobilizing Against the Military Commissions Act of 2006 November 6, 2006 – 9:59 amNo Comments by Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, and Deborah Popowski Students and professors mobilized against the Military Commissions Act of 2006, submitting a petition to Congress with the signatures of more than 600 legal academics. On September 28, the Senate passed the Military Commissions Act of 20061 by a 65-34 vote. The House of Representatives had approved the bill the day before by a vote of 253-168. On October 17, President Bush signed the bill, codifying severe restrictions on fundamental rights. As the bill made its way through Congress, we asked ourselves, and each other, what we could do about it. How could we respond most effectively to the clear threat to human rights and the rule of law posed by the bill and by President Bush’s treatment of detainees? We decided to take action. We drafted a letter to Congress and sought support from legal academics throughout the country. Hundreds of faculty members welcomed the chance to criticize Congress’ acquiescence to the President’s detainee regime. The bill passed and was signed into law, but our experience demonstrates that lawyers, law students, and others are willing to act quickly when the stakes are high. Tapping that energy for meaningful political action plays a critical role in our democracy. I. Background The Military Commissions Act of 2006 emerged in response to the Supreme Court’s rejection of the Executive’s conduct in Hamdan v. Rumsfeld;2 the Court had explicitly invited such a Congressional response by criticizing the Executive for acting without Congressional authority. Leading Republicans initially opposed the Administration’s proposed legislation, but then worked out a “compromise” bill. Despite that moniker, the bill won little in terms of oversight, review, or constitutional guarantees, allowing the President to exercise enormous unchecked power. We describe here how we drafted, circulated, distributed, and publicized a letter of opposition to this so-called compromise. We hope to learn from this mobilization experience, to prepare ourselves better for future battles over fundamental rights, and, in the very act of writing about our experience, to take another step in standing up and speaking out against the grave danger to liberty in this country. II. From Opposition to “Compromise” to Rushed Legislation It all happened very quickly. Media sources reported on Thursday, September 21 that Republican Senators John McCain, John Warner, and Lindsey Graham, who had opposed President Bush’s proposed military commissions legislation, had compromised with the White House and sought to pass revised legislation in a week’s time. The text of the compromise, however, appeared to make very few concessions to the Senators, and many of those seemed cosmetic rather than substantive. The Administration’s positions remained virtually unchanged: amnesty for United States officials who may have committed war crimes under American statutes;3 decriminalization of a broad spectrum of violations of the Geneva Conventions;4 presidential power to deem individuals, including citizens, as enemy combatants;5 elimination of the writ of habeas corpus for foreigners deemed enemy combatants by the President or his agents;6 and the continued possibility of capital trials based on secret7 or coerced8 evidence. We met to discuss possible courses of action and asked professors to help. Professors Minnow and Cavallaro volunteered, but the question remained as to what kind of action could or should be taken. The bill itself used purposefully opaque language, presenting real challenges for analysis and advocacy. Moreover, Congressional leaders and the White House rushed the legislation, confident in the unity of the Republican majority. Passage seemed to be a fait accompli. Nevertheless, we ultimately decided to draft an open letter to Congress, hoping that this vehicle would provide a time-sensitive way to develop a dissenting argument. As quickly as we could, we analyzed the bill and related legal materials, drafted an initial letter, and began to formulate plans for its distribution. III. The Advocacy Message: What to Include? It turned out to be a challenge to decide which arguments to include in order to secure a broad array of professors’ signatures. We balanced our desire to voice all of our objections to the bill’s provisions against the competing need to keep the message focused on a few fundamental advocacy points that would garner support from potential signers and would also resonate with Members of Congress and the American public. A prime example of this tension arose with the provision of the bill that provides blanket immunity for certain war crimes committed by U.S. officials since 1997.9 Under the provision, individuals who have violated Common Article 3 of the Geneva Conventions10 – but whose violations do not fall within the limited universe of “grave breaches” created under the new Military Commissions Act – are immunized from prosecution for their crimes. The bill thus denies many victims who have suffered cruel, inhuman, or degrading treatment at the hands of U.S. agents the chance to bring their abusers to justice, despite the express illegality of the conduct at the time. Many of us strongly objected to this aspect of the bill, but we recognized early that we had to weigh our revulsion at this blanket amnesty with the need to rally support. Initial feedback from a few faculty members generally sympathetic to the effort indicated that even they would not want to raise objections to this provision. We concluded that our message would be more broadly compelling if we omitted our own objections to amnesty for past war crimes and instead focused on condemning the bill’s authorization of future objectionable acts. Prospective violations, we believed, would be viewed as a higher priority by many in the legal and political communities. This, then, is the argument reflected in the final letter. Another dilemma we confronted was how best to portray the range of interrogation techniques that would become legal under the proposed bill.11 On the one hand, much of our motivation for opposing this bill stemmed from our conviction that its language could be used to attempt to provide domestic legal cover for techniques – such as waterboarding – that, in reality, are prohibited forms of torture or cruel, inhuman, and degrading treatment or punishment. If this is the case, then one advocacy strategy would have been to highlight this reality in the starkest possible terms so as to generate more, and more intense, opposition to the bill’s passage. On the other hand, given the likelihood that the bill would be signed into law, our own characterization of the bill as potentially condoning such atrocious conduct could undercut future legal arguments that the statute is more restrictive. Although on its face, the bill’s text might perhaps permit waterboarding, it is also sufficiently ambiguous to allow conscientious lawyers in the government and elsewhere to argue that the bill does not give such permission. Indeed, some of the key Republican Senators believed that the compromise had outlawed waterboarding.12 In its final form, the letter navigated this difficulty by stating our concern that the Military Commissions Act could be read to permit specific types of abusive treatment (such as beatings to the point of leaving bruises). We did not, however, characterize the bill as legalizing torture or cruel, inhuman, or degrading treatment or punishment. We regarded some of the conduct arguably condoned by the bill as violations of the Geneva Conventions and, therefore, absolutely impermissible. But we also knew that some potential signatories had doubts whether the relevant portions of the Geneva Conventions, as a matter of U.S. law, bind American agents now or will do so in the future. Thus, we found ways to point to the bill’s potential shortcomings, while neither arming those who would exploit the statute’s weaknesses nor undermining those who could argue to limit its scope in application. There also remained core elements of the bill we wanted to condemn in no uncertain terms, of course. For example, the letter criticizes provisions of the bill that allow the use of evidence obtained through coercion13 and that deny defendants full access to exculpatory evidence in the government’s possession.14 Both of these provisions violate historic understandings of U.S. Constitutional law under both the Due Process Clause and the Fifth Amendment.15 The final letter thus condemned some of the bill’s most objectionable provisions, while still, we hoped, inviting broad support. Although among ourselves we had discussed many finer details, we ultimately focused on the most salient points, seeking to unite, rather than divide, the group of potential supporters of the effort. IV. Gathering Signatures, Reaching Congress Initially, it was not clear whether many members of the Harvard Law faculty would sign the letter. We first circulated it to a small group of people who had criticized the treatment of detainees publicly in the past. By Tuesday morning, 24 hours after we started working, only 10 professors had indicated that they would sign. With the agreement of this core group of writers and contributors, we finalized the draft for circulation to faculty members beyond Harvard beginning Tuesday night, September 26. We ran an around-the-clock effort to contact law professors around the country, share the letter, and seek support. We started with a list of several hundred professors who had signed a 2004 letter denouncing the use of torture at Abu Ghraib prison in Iraq. We gathered e-mail addresses of other law professors who might be interested in opposing the bill. Time was short, so we prioritized finding faculty at schools with reputations for political engagement; we also sought geographical diversity. As the night wore on, we focused on scholars in the central, then mountain, then pacific time-zone states in order to increase the chance of a quick response. After sending e-mail solicitations throughout the night, by Wednesday morning, we had received over 300 signatures. Previously uninvolved colleagues and friends from other schools volunteered to help. We spread out around the campus to fax the letter to Senate offices and to make follow-up calls. We called our own senators, urging them to oppose the bill, and to filibuster if necessary. As the number of signatures climbed to more than 500, we enhanced our lobbying efforts, gaining access to increasingly higher level Congressional staffers working for Senators Arlen Specter, Ted Kennedy, and Harry Reid. We targeted Senator John Kerry, who at 4:00 pm on Wednesday, the day before the crucial Senate votes would begin, had not taken a position on the bill. Ultimately, Senator Kerry spoke vocally against the bill on the Senate floor, but such opposition proved to be too little, too late. V. Reflections The bill passed. Advocacy efforts-not just those of law students and professors, but more generally-had also started too late, and had failed to engage broad segments of the population. However, we learned how a handful of engaged students and professors can swiftly provide a platform for others who want to voice opposition. The rapid and widespread response of solicited faculty around the country – over 600 willing signatories replied in roughly 24 hours – suggests that people will not take for granted the jeopardizing of fundamental American legal values by the political branches. * Stephanie Brewer, Fernando Delgado, Yukyan Lam, and Deborah Popowski are students at Harvard Law School. James Cavallaro is a Clincal Professor of Law at Harvard Law School. Martha Minow is Jeremiah Smith, Jr. Professor of Law at Harvard Law School. 1 Military Commissions Act of 2006, Publ. L. No. 109-336, 120 Stat. 2600 (codified in scattered sections of 10 and 18 U.S. C.) [hereinafter "MCA"]. 2 126 S. Ct. 2749 (2006). 3 See MCA § 6(b). 4 Id. 5 MCA § 3(a)(1) (refer specifically to amended § 948(1)(A)). 6 MCA § 7. 7 See MCA § 3(a)(1) (§ 949j(c), (d)). 8 See id (§ 948r(c), (d)). 9 See MCA § 6(b). 10 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316. 11 See MCA § 6(b). 12 For instance, Senator McCain states that he is “confident that [the Military Commissions Act] will criminalize certain interrogation techniques, like waterboarding and other techniques that cause serious pain or suffering that need not be prolonged.” Press Release, Senator John McCain, McCain Urges Final Passage of the Military Commissions Act of 2006 (Sept. 28, 2006), available at 13 See MCA § 3(a)(1) (§ 948r(c), (d)). 14 See id (§ 949j(d)). 15 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Mister Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977); Note: Secret Evidence in the War on Terror, 118 HARV. L. REV. 1962 (2005). Preferred Citation: Stephanie Brewer, James Cavallaro, Fernando Delgado, Yukyan Lam, Martha Minow, & Deborah Popowski, Mobilizing Against the Military Commissions Act of 2006, 1 HARV. L. & POL’Y REV. (Online) (Nov. 6, 2006),