Tuesday, October 17, 2006

Military Commissions Act of 2006 | Two Centuries of American Democracy Undone with the Stroke of a Pen

Tonight it's official: Mr Bush signed into law the Military Commissions Act of 2006 passed by the 109th Congress — and with the stroke a his pen gave the terrorists a significant victory. The effect of this law increases presidential power to operate in secret and without checks and balances by the Congress or the courts in ways that have been steadfastly rejected by Americans through 217 years, 108 Congresses and 42 presidents. A few notes on the text, and a word after . . .

The President now has the authority personally and through tribunals appointed by him or the Secretary of Defense to hold and try unlawful enemy combatants.
(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--
`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
– ec. 948a. Definitions

Though elsewhere designated as individuals who are not US citizens, this definition is broad enough to include anyone on the planet.

`(d) Inapplicability of Certain Provisions- (1) The following provisions of this title shall not apply to trial by military commission under this chapter:
`(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.
`(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.
`(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
–`Sec. 948b. Military commissions generally

This law explicitly takes exception to the Uniform Code of Military Justice and the international conventions signed by the US at Geneva on August 12, 1949. In particular, this law suspends the legal requirement for a speedy trial and the rules regarding torture as a means of obtaining self-incriminating statements. The military is hereby permitted to hold people indefinitely and use nonlethal force to extract confessions.
(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
`(d) Punishments- A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war.
– `Sec. 948d. Jurisdiction of military commissions

Under this law, if a tribunal rules that someone is an unlawful enemy combatant, that's that. No challenge. No review. No oversight. No repercussions.
`Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.
–`Sec. 948h. Who may convene military commissions
`(a) In General- Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter.
`(b) Detail of Members- When convening a military commission under this chapter, the convening authority shall detail as members of the commission such members of the armed forces eligible under subsection (a), as in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a military commission when such member is the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case.
`(c) Excuse of Members- Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case.
– `Sec. 948i. Who may serve on military commissions

The Secretary of Defense can under this law designate anyone in the government to convene a military commission. The one who convenes a military commission may under this law excuse any member of the commission for any reason from participating in a case. Another word for excuse might be exclude.
`(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
`(2) the interests of justice would best be served by admission of the statement into evidence.
`(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
`(2) the interests of justice would best be served by admission of the statement into evidence; and
`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.
– `Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

In general, the introduction into evidence of self-incriminating statements obtained by torture is discouraged — however such evidence is not prohibited.
`(E)(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.
– `Sec. 949a. Rules

Hearsay evidence that would ordinarily be excluded under the law is, under this law, permitted.
`(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to--
`(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or
`(B) ensure the physical safety of individuals.
– `Sec. 949d. Sessions

The military judge may at his or her discretion make secret the proceedings of a military commission.
`(1) NATIONAL SECURITY PRIVILEGE- (A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.
`(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that--
`(i) the information is properly classified; and
`(ii) disclosure of the information would be detrimental to the national security.
`(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.
– (f) Protection of Classified Information
`(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES- The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.
`(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL- During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review of trial counsel's claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.
`(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS- A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
`(4) ADDITIONAL REGULATIONS- The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60 days before the date on which such regulations or modifications, as the case may be, go into effect.
– INTRODUCTION OF CLASSIFIED INFORMATION

The source, method of acquisition and substance of evidence against the accused may be declared privileged as a matter of national security in which case the accused may be prohibited from responding to evidence presented as fact in the case. This might be called the "If we told you, we'd have to kill you" clause.

On 60 days notice, the Secretary of Defense may change the rules regarding privileged national security information by notifying the House and Senate Armed Services Committees in writing.
`The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense.
– `Sec. 949t. Maximum limits

The President or Secretary of Defense establish the limits of punishment for offenses under this law.
(a) In General- Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement--
`(1) in any place of confinement under the control of any of the armed forces; or
`(2) in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use.
– `Sec. 949u. Execution of confinement

`(c) Action by Convening Authority- (1) The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.
– `Sec. 950b. Review by the convening authority

The convening authority – the President, Secretary of Defense or a designee – is empowered under this law to override the findings and outcomes of military commissions at his or her sole discretion. This gives the convening authority the leverage to cut deals with those convicted by military commissions.
`(a) Finality- The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President.
`(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
– `Sec. 950j. Finality or proceedings, findings, and sentences

The President is in this regard more or less declared King just 217 years after the US Constitution launched the grand experiment we still – albeit somewhat cynically – call American Democracy. Not that his power is absolute but that it is unchallenged and unchecked when it comes to the dispensation of justice in anything he can construe as the war on terror. In that singular change we have become what we declared unlawful and unacceptable in 1776, fought against until 1783 and carefully designed our Constitution to prevent in 1789. Our oppressors and enemies in that conflict followed us into the spirit of that new social covenant. The US Constititution changed the game.

Now this President and Congress have changed it back and 74 million Baby Boomers failed to stop them. This is what The Big Chill looks like.

I suspect our passivity about this when it was right in front of us may prove to be my generation's most enduring public failure (I certainly hope it doesn't get worse than this but more on that later). I fear this failure will take a very long time to correct. I recommend we get started November 7, 2006 by sending a cohort to the 110th Congress who will begin the process of restoring the Constitutional separation of powers and mending the breach between the US and our allies – indeed to mend the breach between what we dreamed and what we are becoming.

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