[Original Content]
Summary of Military Commissions Act of 2006 (38 pages, as passed by both House and Senate, H.R. 6166/S. 3930)
Steve White was absolutely correct to point out that only alien unlawful combatants can be tried by military commission i.e., non-US citizens who do not meet the GC criteria as lawful combatants (under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war.)
By far the most important thing this legislation does is suspend the writ of habeas corpus for alien unlawful combatants, something I have advocated for years. It cuts civilian courts out of the loop, and greatly reduces muzzbats capability to use such proceedings for agitprop.
In case you didnt already think Arlen Specter is scum, I note that he proposed an amendment to strike this habeas provision, which was only very narrowly defeated (51 nays, 48 yeas). Without that, this legislation would have been pointless.
Whether or not a combatant is lawful or not remains an issue for Combatant Status Review Tribunals (a.k.a. Art. 5 trubunals); significantly, their decisions cannot be reviewed by civilian courts. These tribunals are not new -- Mr. exJAG worked on them for a spell in Baghdad in 2003.
Lawful enemy combatants who violate the law of war are subject to trial by court-martial, rather than by military commission. As basically no combatant we meet these days is lawful, this is largely an academic issue.
Affirms that commissions are regularly constituted courts, as required by CA3. This is really important, as this language was the major reason the Supreme Court ruled in favor of the terrorists in Hamdan).
Generally, commission procedures are based on the UCMJ, with several exceptions:
* No speedy trial requirement
* No right to Art. 32 (prelminary) hearing
* Detainees cannot invoke the Geneva Comventions as a source of rights
* Only active duty military officers can serve on commissions (as the jury)
Military judges, prosecutors, and defense counsel are active duty JAG officers, detailed just as in courts-martial.
Triable offenses basically run the gamut of war crimes:
murder of protected persons
attacking civilians or civilian objects, or protected property
pillaging
denying quarter
taking hostages
employing poison or similar weapons
using protected persons or property as a shield
torture
cruel or inhuman treatment
intentionally causing serious bodily injury
mutilating or maiming
treachery and perfidy
improper use of flag of truce or distinctive emblem
intentionally mistreating a dead body
rape
hijacking or hazarding a vessel
terrorism, material support thereof, including attempts
wrongfully aiding the enemy
spying
conspiracy.
Rights detainees DO get (none of which, to the best of my knowledge, are new):
* presumption of innoncence until proven guilty
* protection against self-incrimination
* statements obtained under torture are usually inadmissible (torture being defined by the Detainee Treatment Act of 2005)
* may present evidence in his defense, cross-examine the witnesses who testify
against him, and examine and respond to evidence admitted against him
* right to be present at proceedings and be represented by counsel, military or civilian
* right to represent self, as long as he observes decorum and complies with the rules
* cant be tried twice for same offense
* right to see exculpatory evidence
* right to assert lack of mental responsibilty defense
* 2/3 of the panel must vote to convict; unanimous vote required for death penalty
* death sentences must be approved by the President
* protection against cruel and unusual punishment
What detainees DONT get:
* protective evidentiary rules; basically, if its relevant, its admissible
* creates a Court of Military Commission Review for appeals (staffed by 3 military judges -- NOT a civilian court)
* appeals from there go to the DC Court of Appeals (which IS a civilian court, one step below the Supreme Court); however, they can only review matters of law, not the underlying facts of the case
* the right to file petitions for habeas corpus in civilan courts.
Overall, I am unimpressed: 99% of this is stuff we already did. I see no use in reiterating laws already on the books, and expecting the Supreme Court to butt out just because the elected branches have repeated themselves. Its like expecting a misbehaving child to obey the bus rules because now youve posted a copy in the rear as well.
While theres lots of language removing matters from the jurisdiction of federal courts, no doubt judges like Anna Diggs Taylor will assert jurisdiction anyway, and make up some shit to justify it. This brings us to the much, much bigger problem of capricious judges who issue arbitrary rulings because it satisfies their personal prejudices one reason we fought that war, whatchamacallit, a while back but thats a separate rant! |
CHICAGO (Reuters) - The government can continue to use its warrantless domestic wiretap program pending the Justice Department's appeal of a federal judge's ruling outlawing the program, an Appeals Court in Cincinnati ruled on Wednesday.
DETROIT The federal judge who struck down President George W. Bush's warrantless surveillance program on Thursday allowed the government to continue the program, but only for another week as it seeks a further postponement from an appeals court.
A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here today in the first major court argument on the program. But, the lawyer went on, addressing Judge