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| Summary of Military Commissions Act of 2006 |
| 2006-10-01 |
| [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 didn’t 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 * can’t 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 DON’T get: * protective evidentiary rules; basically, if it’s relevant, it’s 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. It’s like expecting a misbehaving child to obey the bus rules because now you’ve posted a copy in the rear as well. While there’s 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 that’s a separate rant! |
| Posted by:exJAG |
| #1 exJag, it seems to me that the Legislature has - for once - has made an effort to unmuddy the waters. Usually they fulfill their oversight responsibility by 2nd guessing after the fact. The Supreme Court rendered the opinion that the legislature needed to legislate Military Commissions and now they have. |
| Posted by: Super Hose 2006-10-01 23:08 |