December 23, 2006January 21, 2007Meeting Report

January 5, 2007

Joy Fisher, LL.M, J.D.

The Military Commissions Act of 2006

Joy Fisher

This was a very successful meeting in which audience questions started just a few minutes into Joy's presentation. Eighteen people attended.

Joy Fisher, an attorney and HAGSA member, discussed the implications of the Military Commissions Act of 2006, passed by Congress and signed into law on October 17, 2006. The law, adopted in response to last summer’s U.S. Supreme Court decision in Hamdan v. Rumsfeld, establishes a flawed and dangerous system of “injustice” for people determined to be “unlawful enemy combatants.”

Salim Hamdan had been Osama bin Laden’s chauffeur. He was taken prisoner in Afghanistan and transported to Guantanamo Bay, where he was held in solitary confinement. His Navy lawyer filed appeals that eventually reached the Supreme Court, which ruled that the system under which he had been held was not authorized by existing law and that Common Article 3 of the Geneva Conventions applied to Hamdan. The CIA also became worried, as many of their coercive interrogation methods might also be illegal on the basis of the Hamdan decision. The Military Commissions Act was soon passed by Congress at the urging of the Bush administration to legalize much of what had just been declared illegal by the Court.

Among other things, the Act has ended habeas corpus for aliens suspected of being unlawful combatants. The Act has allowed the status of an alleged unlawful combatant to initially be made by a Combatant Status Review Tribunal. Once that is done the accused is entitled to a trial. However, there is no requirement for a speedy trial. This means that one can be held indefinitely without trial. There is in the law a prohibition against torture, but it is very narrowly defined. Worse, there is a national security privilege in the law that can prevent interrogation methods from being mentioned in legal proceedings. This can, in effect, provide a shield against disclosure of torture and thus trump the torture prohibition. This sounds like Catch 22!

Joy wrote a three-part series on this topic for Human Interest. The three parts appeared in the November, December and January issues of Human Interest.

Joy is a graduate of Pepperdine Law School. She has a Masters of Law in Business and Taxation from McGeorge School of Law, and a Certificate in International Legal Studies from McGeorge. A former newspaper reporter, she worked as a legal editor at the Center for International Legal Studies in Salzburg, Austria, before returning to the United States and reinstating as an active employee with the State of California. She plans to retire (for the second time) on August 5, 2007, and move to Victoria, British Columbia “before the Canadians slam the door on us crazy Americans.”

Report prepared by Wayne Luney, Recorder

Reprint of One Small Step

To display or download a reprint of all three parts of One Small Step: The Military Commissions Act of 2006 (requires Adobe® Reader), click on the link, below.

One Small Step

Note that it is set up for two-sided printing. If you want to print it in single-sided form, you may want to print just page i and pages 1 to 7. (Page ii and page 8 are blank.)


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