10/17/06: A Dark Day in American History

[jaxvon]

I would like all of you to join me in mourning the death of the Bill of Rights. Today, President Bush signed into law, the Military Commissions Act of 2006. With the help of the Patriot Act, it effectively eliminates all but the Third Ammendment. Here are some highlights of the bill, courtesy of the entry in Wikipedia:

An “unlawful enemy combatant” can be any person – not excluding American citizens - determined to be one by a “competent tribunal” established by the President or the Secretary of Defense [Sec.948a(1)(ii)]. What comprises a competent tribunal – or by what criteria they would make such a determination - is not defined.

The Act changes pre-existing law to explicitly suspend the writ of habeas corpus for detainees who are not U.S. citizens [Section 7(a)]. This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases.

If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying unlawful enemy combatants who are not citizens of the United States. [Sec.948b (a)] The Act does not exclude these rules from being applied when trying unlawful enemy combatants who are American citizens.

• Certain sections of the Uniform Code of Military Justice are deemed inapplicable - including some relating to a speedy trial [Sec.948b (d)(1)(A)], compulsory self-incrimination [Sec.948b (d)(1)(B)], and pre-trial investigation [Sec.948b (d)(1)(C)].
  
• A civilian defense attorney may not be used unless they have clearance to view materials classified Secret. [Sec.949c(b)(3)(D)]
  
• Based on his findings, the judge may introduce hearsay evidence [Sec.949a(b)(2)(E)(i)], evidence obtained without a search warrant [Sec.949a(b)(2)(B)], evidence obtained when the degree of coercion is disputed [Sec.948r (d)], or classified evidence not made available to the defense [Sec.949d(f)(2)(B)].
  
• A finding of Guilty requires only a 2/3 majority [Sec.949m(a)]
  
• No defendant may invoke the Geneva Conventions in legal proceedings on their behalf. [Section 5(a)]
  
• The President determines “the meaning and application” of the Geneva Conventions banning the torture of prisoners. [Sec.6 (a)(3)(A)]
  
• The accused may be tried for the same offense a second time “with his consent” [Sec.949h(a)].
  
• If the military commission returns a finding of Not Guilty, its convening authority is not required to take action on the findings. [Sec.950b(c)(3)]

By signing this bill, I believe that President Bush has completely failed in his duty as President. In case you have forgotten, here is the Oath of Office he took when he came into office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

President Bush has done the exact opposite of what he swore to do. He has succeeded in destroying our Constitution and the rights it gave to us. I believe that the Act signed into law today is just one of many, many grounds for his impeachment.

Note: Edited to fix list formatting.

 

[rmongiovi]

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Benjamin Franklin, Historical Review of Pennsylvania, 1759
US author, diplomat, inventor, physicist, politician, & printer (1706 - 1790)

 

[Buckeyefan 1]

Well, he's targeting terrorists, not your typical illegal immigrant or non law abiding American citizen. The problem with terrorists is that they could care less, and would choose to die as a martyr and go straight to the promised land with their 72 virgins, much less care about a new Act signed by Mr. War monger himself. I'd like to see a boxing...better yet, wrestling match against Kim Jong-il and Bush.

 

[jaxvon]

Well, he's targeting terrorists, not your typical illegal immigrant or non law abiding American citizen. The problem with terrorists is that they could care less, and would choose to die as a martyr and go straight to the promised land with their 72 virgins, much less care about a new Act signed by Mr. War monger himself. I'd like to see a boxing...better yet, wrestling match against Kim Jong-il and Bush.

Officially, yes. But under said law, I could easily be defined as an "unlawful enemy combatant". Here is an excerpt from the law in question:

(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.

The following is the Webster's definition of 'hostility':

Pronunciation: hä-'sti-l&-tE
Function: noun
Inflected Form(s): plural -ties
1 a : deep-seated usually mutual ill will b (1) : hostile action (2) plural : overt acts of warfare : WAR
2 : conflict, opposition, or resistance in thought or principle
synonym see ENMITY

Using this definition (which I will assume to be widely accepted), I can be construed as 'hostile' because I oppose President Bush and his administration in thought or principle. Thus, by applying this to paragraph (i) above, I can be defined as an enemy combatant, as can many, many other people.

While I would hope that the person this law will usually be used against is NOT an American citizen, the problem is that there is still a provision that allows an American citizen to be defined as an "Unlawful enemy combatant". And by "the problem", I mean only with this small section of the law. It is also useful to keep in mind that the Patriot Act, which was touted as another measure to fight terrorism, has been used by and large for non-terrorist prosecutions, as detailed here.

Note: Edited for argument clarity.
Edit 2: Added a link to the complete Act. Please note that it is in PDF format.
Edit 3: Changed 'bill' to 'law' in first paragraph, as the legislation in question is no longer a bill.

 

[Tomorrow]

I would like all of you to join me in mourning the death of the Bill of Rights. Today, President Bush signed into law, the Military Commissions Act of 2006. With the help of the Patriot Act, it effectively eliminates all but the Third Ammendment. Here are some highlights of the bill, courtesy of the entry in Wikipedia:

An “unlawful enemy combatant” can be any person – not excluding American citizens - determined to be one by a “competent tribunal” established by the President or the Secretary of Defense [Sec.948a(1)(ii)]. What comprises a competent tribunal – or by what criteria they would make such a determination - is not defined.

The Act changes pre-existing law to explicitly suspend the writ of habeas corpus for detainees who are not U.S. citizens [Section 7(a)]. This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases.

If the government chooses to bring a prosecution against the detainee, a military commission is convened for this purpose. The following rules are some of those established for trying unlawful enemy combatants who are not citizens of the United States. [Sec.948b (a)] The Act does not exclude these rules from being applied when trying unlawful enemy combatants who are American citizens.

• 
  *Certain sections of the Uniform Code of Military Justice are deemed inapplicable - including some relating to a speedy trial [Sec.948b (d)(1)(A)], compulsory self-incrimination [Sec.948b (d)(1)(B)], and pre-trial investigation [Sec.948b (d)(1)(C)].
  
  *A civilian defense attorney may not be used unless they have clearance to view materials classified Secret. [Sec.949c(b)(3)(D)]
  
  *Based on his findings, the judge may introduce hearsay evidence [Sec.949a(b)(2)(E)(i)], evidence obtained without a search warrant [Sec.949a(b)(2)(B)], evidence obtained when the degree of coercion is disputed [Sec.948r (d)], or classified evidence not made available to the defense [Sec.949d(f)(2)(B)].
  
  *A finding of Guilty requires only a 2/3 majority [Sec.949m(a)]
  
  *No defendant may invoke the Geneva Conventions in legal proceedings on their behalf. [Section 5(a)]
  
  *The President determines “the meaning and application” of the Geneva Conventions banning the torture of prisoners. [Sec.6 (a)(3)(A)]
  
  *The accused may be tried for the same offense a second time “with his consent” [Sec.949h(a)].
  
  *If the military commission returns a finding of Not Guilty, its convening authority is not required to take action on the findings. [Sec.950b(c)(3)]

By signing this bill, I believe that President Bush has completely failed in his duty as President. In case you have forgotten, here is the Oath of Office he took when he came into office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

President Bush has done the exact opposite of what he swore to do. He has succeeded in destroying our Constitution and the rights it gave to us. I believe that the Act signed into law today is just one of many, many grounds for his impeachment.

Well, Jax....this is a little like saying the Bill of Rights just bit the dust because you're not able to yell fire in a crowded theater (1st Amendment limitation), you can't carry any gun you want at any time you want (2nd Amendment limitation), violate the 3rd Amendment by changing the "prescribed by law" provision, arguing the definition of "unreasonable" in search and siezures in the 4th Amendment....etc etc.

Bush.."Destroying our Constitution"?! C'mon, Jax...let's look at things logically instead of in a politically hysterical frame. And you're at a renowned institution of higher learning. When did Wikipedia become a bible of truth?

You're also intimating that Bush made this happen. 'Twas congress.

I don't mind people having a problem with Bush or any legislator. (I consider them all scoundrels and yearn for a workable anarchy...dreamer that I am.) But haven't we had enough of this acrimonious, political nonsense?!

 

[Sheep]

You're also intimating that Bush made this happen. 'Twas congress.

He DID sign it...

That's all from me, I'll watch from the sidelines.

SheepStar

 

[jaxvon]

Well, Jax....this is a little like saying the Bill of Rights just bit the dust because you're not able to yell fire in a crowded theater (1st Amendment limitation), you can't carry any gun you want at any time you want (2nd Amendment limitation), violate the 3rd Amendment by changing the "prescribed by law" provision, arguing the definition of "unreasonable" in search and siezures in the 4th Amendment....etc etc.

Obviously I'm not going to argue such tired points about rights. We know that to live in a society and enjoy certain rights and freedoms that we must place some limit on individual freedoms so that they do not infringe on others'. The problem that I see with the law is that it opens the door to abuses of civil rights. Sure, our "normal" criminal law allows for removal of rights upon prosecution, but the vague language of the MCA of 2006 leaves enough wiggle room for those rights to be removed before, during, and after a trial. An example of such vague language:

Sec. 948r. Charges and specifications

(a) Charges and Specifications- Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state--

(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and

(2) that they are true in fact to the best of the signer's knowledge and belief.

(b) Notice to Accused- Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges against him as soon as practicable.


You will notice that there is no set time for informing the accused of the charges. This language is very vague, and nowhere in the document is "practicable" defined, nor is any hard maximum set for the length of time between accusation and information of the accused. This vague wording is repeated in many sections of the law.

Bush.."Destroying our Constitution"?! C'mon, Jax...let's look at things logically instead of in a politically hysterical frame. And you're at a renowned institution of higher learning. When did Wikipedia become a bible of truth?

I do believe that I am looking at it from a mostly logical point of view. President Bush signed into law a bill that specifically violates our civil rights. The same goes for the Patriot Act. In my view, passing a law that subverts the Constitution is equivalent to destroying it, or at least the parts it subverts.

As for linking to Wikipedia, I know that it is NOT the bible of truth. I only linked to it because it is a convenient source for a summary of the bill with links galore relating to the interpretation of the law and commentaries from differing viewpoints. Instead of re-posting all of these myself, I felt that it was more efficient to paste just one link. You will also notice that I have linked to the official document in question so that everyone may read and interpret for themselves.

You're also intimating that Bush made this happen. 'Twas congress.

T'was both. Bush has been urging Congress to pass the bill for the past few weeks and, as Sheep mentioned, he was the one that made it law. In addition, I do not wholly blame Bush for the action. The congressmen that passed such legislation are also responsible. I personally find it despicable that they even thought about passing it, but that is only my opinion.

I don't mind people having a problem with Bush or any legislator. (I consider them all scoundrels and yearn for a workable anarchy...dreamer that I am.) But haven't we had enough of this acrimonious, political nonsense?!

I'm in agreement with you about the soundrels. I believe that our "democracy" as it is today is basically a sham (as my sig now reads). Have we had enough? Perhaps, but I don't consider this particular thread to be nonsense. On the contrary, I find it very, VERY important.

Edit: I do want to mention one provision of the law I support, section 948r, Subsection (d), paragraph (3):

(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.

The Detainee Treatment Act of 2005 can be found here.
The UN CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment it references can be found here.

As for the United States Reservations document referenced in the Detainee Treatment Act of 2005, I am unable to locate an electronic copy at the moment. If and when I do, it will be posted.

Note: Edited again for typo, changed "Sec. 948q" to "Sec. 948r".

 

[Tomorrow]

Obviously I'm not going to argue such tired points about rights. Perhaps, but I don't consider this particular thread to be nonsense. On the contrary, I find it very, VERY important.

When did discussion of the limitations of the Bill of Rights become "tired"? And you suggest my arguments about rights are tired and yours aren't?

I won't argue with your political rhetoric, Jax. You liberals and the conservatives can put out all the vitriol you want. Have at it.

By the way, I didn't say that "this particular thread was nonsense". I said, "Haven't we had enough of this acrimonious, political nonsense".

You need to keep to facts and drop the colorizing of events and statements, Jackson. I know you have the ability to be a clear thinker and debater.

 

[jaxvon]

When did discussion of the limitations of the Bill of Rights become "tired"? And you suggest my arguments about rights are tired and yours aren't?

I won't argue with your political rhetoric, Jax. You liberals and the conservatives can put out all the vitriol you want. Have at it.

By the way, I didn't say that "this particular thread was nonsense". I said, "Haven't we had enough of this acrimonious, political nonsense".

You need to keep to facts and drop the colorizing of events and statements, Jackson. I know you have the ability to be a clear thinker and debater.

I am sorry if it seemed I was inferring that your arguments are tired. I was most definitely not. I was referring to the classic (and somewhat tired) example of our lack of free speech with the "Shouting 'FIRE!' in a crouded theater".

RE: "Nonsense", again, an apology for a misinterpretation and misrepresentation.

RE: Rhetoric

I'll admit that some of what I have written is rhetoric, but I do not think that pointing out vague wording in a law is rehetoric, nor do I think that asserting that such wording makes it easier to abuse the law is rhetoric.

As for my colorizing of statements, I can only find a few examples of colorization as I review my posts. The introduction in the first paragraph of the first post is quite biased, and I intended it to be so, as it is expressing my opinion. However, references to fact follow it. The last two paragraphs of the first post dealing with my argument that Bush is "destroying the Constitution" is again my opinion, though clearly stated as such. I also expounded on this claim in a later post. The Constitutionality of the Patriot Act's allowance for warrantless wire tapping has already been challenged. As for the law in question, I assert that it destroys the bill of rights because it allows for American citizens to be classified as "enemy combatants" (and quite easily if you believe the example I stated), and therefore have many rights removed by a simple reclassification of who you are.

Now, this is not as 'simple' as waving a magic wand and making it so. The following is the requirement for making such a determination, from Sec. 948d:

(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.

The status must be determined by a tribunal. However, there is no reference to what constitutes a competent tribunal. Perhaps I am being too specific about definitions, but I think in this case that, as this law defines specific numbers of people present for the actual commissions, it should also define specificities for the tribunal that will initiate the commission in the first place.

One last thing....

RJ, I definitely respect your opinion. I do not ask that you argue my rhetoric or points, but I do ask that, if you feel it necessary, to lend a voice of reason to the conversation. Many thanks for doing so already, and in advance for posts that may come later.

 

[Rob Babcock]

Anyone who thinks it's hyperbole should read the law themselves. I am not a republican nor a democrat. I find this one of the most chilling peices of legislation ever signed into law.

 

[jaxvon]

Upon reading the law in its entirety and excerpts from other laws that are referenced within the law, I have come to the conclusion that 1)The points referenced by the Wikipedia excerpt in my first post are accurate and 2) that our rights U.S. citizens are not immediately at risk. However, by changing one word in Section 948c, we will be at risk.

‘‘§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

The key word here is 'alien'. In the law in question, 'alien' is defined as:

The term ‘alien’ means a person who is not a citizen of the United States.

If 'alien' were to be deleted from § 948c, we would all be vulnerable to the MCA of 2006.

There are many parts of this law that I find disturbing, which I will hopefully post tomorrow (it's late and I'm tired). One in particular is the amount of power delegated to the person that convenes the Military Commission, be it the President, the Secretary of Defense, or a person delegated by the Secretary of Defense. The Secretary of Defense anything he/she wants, provided that he/she adheres to this rule:

‘‘(d) NOTIFICATION TO CONGRESSIONAL COMMITTEES OF CHANGES TO PROCEDURES.—Not later than 60 days before the date on which any proposed modification of the procedures in effect for military commissions under this chapter goes into effect, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report describing the modification.

There is nothing in the body of the law that states the Secretary must seek approval for the changes, only that he must notify the proper authorities in Congress.

Another big issue is the elimination of Habeus Corpus (for the commissions, not normal trials). Again, this specifically applies only to aliens.

No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.

The Act also bars any alien from invoking rights provided by the Geneva Conventions:

No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.


Now, did I cry wolf in my first post? I think not. While the danger to our rights is not immediate, I believe that it is imminent, given how easily the law can be altered to include U.S. citizens. Under its provisions we can already be classified as "unlawful enemy combatants". The deletion of the word 'alien' in at least one place (mentioned near the top of this post) will allow us to be tried in a military commission. If 'alien' were to be deleted in another place, we would lose our right to invoke the Geneva Conventions.

I find this law disturbing, unacceptable, and unconstitutional. If you do not agree with me, you may after I post other elements of the law.


To quote Edward R. Murrow,

"Good night, and good luck."

Note: Edited to complete a statement made in the first paragraph.

 

[BMXTRIX]

If what I am reading is correct, then this goes against the rights of citizens of the United States. I'm not a fan of the military, but I do believe that they must have certain rights and powers that are outside the scope of 'proper' etiquette to deal with potential enemy combatants.

BUT: A US citizen should NEVER be considered an enemy combatant. The military should have 100% ZERO rights to make such a declaration. As much as it may be said "To combat terrorism." it is bunk. The ability to take away the rights of an person who was born and raised in America can be twisted to any number of final outcomes - and WILL be! It could range from a personal vendetta, to a person burning a flag, to someone working to get the president out of office through protests. All of those things can be twisted in some way to show actions that harm the USA and therefore that person loses the rights that they were born with.

If you only apply these rules to non-citizens, then the picture changes dramatically. Foreigners from ally and foe nations have come to our country regularly for the sole purpose of spreading dissent among Americans. Those who have raised their arms against us take it further. Our military should rightfully be able to deal with these people as they see fit. It should NEVER touch our judicial system. The judicial system should be dealing with the issues that our citizens have.

 

[Takeereasy]

I think that the US citizen that was found in Afganistan training with the terrorists IS an enemy of the US, and Canada, and everywhere else for that matter. I feel the same about all people who train to subvert or attack a country using fear or terror as the means. Those Canadian citizens (11 of them) who were training to be terrorists are enemies of Canada as far as I'm concerned. They should be subject to military dicipline IMO. Those "people" would have killed everyone that wasn't a solid enough Muslim for them.

So to clarify I think that there is a narrow window where a country's citizens are indeed its enemies. I don't want to be the one responsible for splitting that particular hair however.

That said I think that the new law is indeed a cause for worry. Again just personal opinions but I can see the potential for abuse.

 

[pzaur]

We're heading towards another era of inquisitions, just like the Spanish Inquisitions from 1478 to 1834, when it was officially abolished, or another era of Salem Witch Trials.
The scope of what can cause an individual to be considered an "enemy combatant" is vague, very vague. If a non-citizen states publicly, "Bush is an idiot", is that enough to label someone and enemy combatant? No. But if someone else's says "I heard that they did and said and they also did/said this..." in conjuction with what is public knowledge about what was said that may be enough because hearsay can be admitted in these tribunals.
Bam, that person disappears for a long time.
There is always a push to silence the opposing groups in everything we do (Bose supporters?). We all know that this will snowball into more and more of our everyday live's to keep us safe from the terrorists. Anyone watch V for Vendetta?
This is ground work for censorship by fear and the erosion of freedoms to the masses. Freedoms should never be given up. We already have a divided society and this is just a way for one group to keep all the power and give themselves more power without checks and balances.
The legislation needs to be challenged and tossed by the Supreme Court.

BTW, America is not a Democracy. We are a Republic. If we were a Demcoracy, there would be no need for a President (symbolic King).
http://en.wikipedia.org/wiki/Republic
Long live the Wikipedia. King of information and mis-information.

-pat

 

[BMXTRIX]

So to clarify I think that there is a narrow window where a country's citizens are indeed its enemies. I don't want to be the one responsible for splitting that particular hair however.

I agree, and that is why there are laws on the books to prosecute these people. Treason is the charge, and around here, it's the death penalty potentially for those people.

It should never EVER be up to the military to strip the rights of those citizens or it WILL be used against people unfairly. Likewise, every citizen has a duty to respect (if not like) their nationality while they are members.

 

[Jack Hammer]

The real problem isn't the intent of laws like these, because they truly can be well meaning and to a certain extent, neccessary. The problem is in the possible applications of laws like this and how they can or will end up being used, and against whom, in the long run. That is what is makes it scary.

$0.02

Jack

 

[Swerd]

Don't overlook the fact that the Supreme Court found Bush's previous edicts on the subject as unlawful, thus requiring Congress approve such a bill. It was against their wishes to do anything so serious in an election year, but Congress chose to rubber-stamp Bush's wishes without considering conflicts with the Bill of Rights. I believe there were several Republican senators who said they thought this bill was unconstitutional, but voted for it anyway. That's real leadership!

I think we will hear from the Supreme Court again on this subject. Bush's bill clearly is in conflict with the Bill of Rights, and I for one hope that the Supreme Court will defend the Bill of Rights from these opportunistic (and hopefully lame duck) politicians.

 

[jaxvon]

In this post I will quote and briefly describe several provisions in the Military Commissions Act of 2006. All quotations from the MCA are verbatim and signified by blocks of italicized text. Italicized words in the comments following are formatted as such to add emphasis.



‘‘§ 948j. Military judge of a military commission
‘‘(f) PROHIBITION ON EVALUATION OF FITNESS BY CONVENING AUTHORITY.—The convening authority of a military commission under this chapter shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to his performance of duty as a military judge on the military commission.

I find this provision very disturbing. Once a military judge is selected, his fitness, effectiveness, or any other quality cannot be evaluated or questioned by the convening authority. The law does not specify that another authority cannot review his fitness. However, later in the law, in § 949b.(b), the law mandates that the fitness, effectiveness, etc. of ANY officer in the commission cannot be questioned, nor can a less favorable rating be awarded to the officer. As specified in § 948j., the presiding judge in the commission must be military judge, and consequently a commissioned officer of the US military. These sections remove any accountability bestowed upon the officers convened for the commissions.


‘‘§ 948q. Charges and specifications
‘‘(a) CHARGES AND SPECIFICATIONS.—Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state—
‘‘(1) that the signer has personal knowledge of, or reason to believe, the
matters set forth therein; and
‘‘(2) that they are true in fact to the best of the signer’s knowledge and
belief.
‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of the charges
and specifications in accordance with subsection (a), the accused
shall be informed of the charges against him as soon as practicable.


This is another interesting section. There is no provision for corroboration of the charges with another authority. Therefore, one could be charged with basically any crime, as long as the signer believes it to be true. Subsection (b) is also very vague on the amount of time allowed to inform the accused of the charges brought upon him. Other parts of the law very exact as to the number of people required for certain decisions or proceedings and the number of days allowed for action to be taken. The two provisions for informing the accused of the charges leveled against him are "as soon as praticable" and, in relation to the serving of the charges in writing, "Such service shall be made sufficiently in advance of trial to prepare
a defense."


A phrase that appears often in the legislation is, "prescribed by the Secretary of Defense". This is used in sections that regulate conduct of officers, proceedings, and many other elements of the commissions defined in the document. There are no provisions as to what exactly the Secretary may or may not prescribe. Anything prescribed by the Secretary must be submitted to the appropriate Congressional authorities (mentioned in an above post) 60 days prior to the enactment of the prescription.


§ 948r.
‘‘(a) IN GENERAL.—No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.
‘‘(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.

Subsection (a) revokes the requirement of a person to testify against himself. The Act does not elsewhere guarantee the right for the accused to choose to testify on his behalf. The accused does have access to defense counsel, witness, and evidence for his defense. The other subsections allow for the entry of hearsay into evidence based purely on the ruling of the presiding judge. The judge is the only person allowed to make such a ruling and can do so without consulting any other person. As for the ban on the entry of statements obtained via torture, this provision is fairly solid, aside from the lack of a concrete definition of torture that includes specific examples of torture activities. This conclusion was reached after reviewing the other laws cited by the Act.


From § 949a.(b)(2)(D):

‘‘(D) Evidence shall be admitted as authentic so long as—
‘‘(i) the military judge of the military commission determines that there is
sufficient basis to find that the evidence is what it is claimed to be; and
‘‘(ii) the military judge instructs the members that they may consider any
issue as to authentication or identification of evidence in determining the
weight, if any, to be given to the evidence.

This provision allows for basically any evidence to be entered into the commission provided the judge approves it. How much this differs from the law that governs our civilian courts I do not know, as I am not familiar with it. On the same token, however, a judge may exclude evidence for reasons that I would deem insufficient:

‘‘(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed—
‘‘(i) by the danger of unfair prejudice, confusion of the issues, or
misleading the commission; or
‘‘(ii) by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.


I would like to again point out, as the Wikipedia article quoted in the first post has, that the accused has the right to defense counsel by a civilian attourney, but only if the civilian is authorized to view classified documents. If the accused cannot produce an attourney that can view classified documents of level Secret (or higher), the only option is an appointed military defense attourney. Please note that it appears that a candidate for the accused defense may be screened and thereby determined to be fit or unfit to view classified documents.


From § 949j.(c)(2):

The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

Again, I dispute the handling of evidence. Note that the judge 'may' require counsel to divulge "an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence." The choice to use 'may' indicates that such action is optional. Other sections of the law that define compulsary actions use the term 'shall'. Therefore, the authenticity of the evidence presented by the Prosecution does not need to be proved, nor do the collection methods need to be verified as legitimate. I urge one to think about the famous O.J. Simpson murder trial and how different the outcome could have been if the legitimacy of the evidence introduced by the prosection could only be determined by the judge.


Continued in the next post.

 

[jaxvon]

Continued from previous post.


From § 949m.:
‘‘(b) SENTENCES.—(1) No person may be sentenced by a military commission to suffer death, except insofar as—
‘‘(A) the penalty of death is expressly authorized under this chapter or the
law of war for an offense of which the accused has been found guilty;
‘‘(B) trial counsel expressly sought the penalty of death by filing an
appropriate notice in advance of trial;
‘‘(C) the accused is convicted of the offense by the concurrence of all the
members present at the time the vote is taken; and
‘‘(D) all the members present at the time the vote is taken concur in the
sentence of death.
‘‘(2) No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.
‘‘(3) All other sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken.

Notice that a 2/3rds majority is needed in all cases except those cases where the person convicted is sentenced to 10 or more years of confinement, life in prison, or the death penalty. Life imprisonment needs only a 3/4 vote. The Death Penalty must be unanimous and be voted upon by 12 members, except in the case where it is not reasonable to detail 12 people to the commission, where a minimum number of nine must vote unanimously to impose the death penalty. If such a case arises, the person charged with convening the commission much append a statement to the record of the commission stating why it was not possible to get all 12 members. I think that this is particularly frightening piece. No longer is a hung jury possible except in the case of punishment by death. I assert that this is denying justice to the accused.


‘‘§ 949t. Maximum limits
‘‘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.

I feel that this section if fairly self-explanatory. Ther is no limit to the punishment prescribed, aside from the provision that excludes cruel or unusual punishments. This provision is as follows:

‘‘§ 949s. Cruel or unusual punishments prohibited
‘‘Punishment by flogging, or by branding, marking, or tattooing
on the body, or any other cruel or unusual punishment, may not
be adjudged by a military commission under this chapter or inflicted
under this chapter upon any person subject to this chapter. The
use of irons, single or double, except for the purpose of safe custody,
is prohibited under this chapter.

Again, I feel that this language is overtly vague and, when combined with the other vaguities of the Act, allows for substantial abuses of the rights of the convicted.


The Act does provide some good pieces, one of which allows the District of Colombia Court of Appeals or the Supreme Court to review the final judgement in any commission. This provision, however, is effectively neutered by (c)(1) and (c)(3) of § 950b.

‘‘(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.

‘‘(3) The convening authority is not required to take action on the findings of a military commission under this chapter.

Please note that (3) is not reproduced in its entirety, as the second half deals with what the convening authority may do if he decided to take action on the findings.

This section is, in my opinion, one of the most important in the entire document. Subsection (c) paragraph (1) allows for the authority to modify the findings or sentence, at his sole discretion. He cannot increase the sentence, but there is no provision preventing him from changing a verdict of "not guilty" to "guilty". This paragraph completely negates the purpose of the commission in the first place. No matter what the verdict is, it can be changed, at the sole discretion of ONE person. Paragraph (3) is also very chilling, in my opinion. Even if a verdict of "not guilty" is returned, and the convening authority does not overturn the verdict, no action is required. This means that a person being detained does not need to be released, he is potentially stuck in prison for as long as the convening authority sees fit.


‘‘§ 950j. Finality or proceedings, findings, and sentences
‘‘(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.

The effects of this section are also very grave. All final findings of a commission are binding to every part of the government, unless the President decides otherwise. Nowhere else in the document is there any check to this power, thus delegating the sole authority to the President to judge the application of the findings. Section (b) then establishes that no one may ever challenge the legality of the findings, the trial, or any conduct of the officers in the trial. The section above, reproduced in its entirety, pardons anyone involved in the commissions, including the President, from any prosecution relating to the commissions.

I believe that this is the first time in our history that a President has pardoned himself from crimes, let alone pardoned himself in advance.


From § 948b.:

‘‘(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 courtsmartial 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.
‘‘(C) Section 832 (article 32 of the Uniform Code of Military Justice),
relating to pretrial investigation.
‘‘(2) Other provisions of chapter 47 of this title shall apply
to trial by military commission under this chapter only to the
extent provided by this chapter.

This section nullifies the right to a speedy trial, compulsary self-incrimination (discussed earlier), and the practice of pre-trial investigations. These are all things we enjoy in our regular civilian trials. Subsection (e) bars the use of precedent in the trials and the use of the trials convened under the Act as precedent for anything else, another concept that is used often in our judicial system:

‘‘(e) TREATMENT OF RULINGS AND PRECEDENTS.—The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter.


Lastly, I leave you with this quote from the Act. It blatantly disregards civil rights in a way that needs no explanation:

(a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.




It should be evident now what an egregious attack on civil rights this law is. If you, like I, find this law to be Unconstitutional and wrong, I urge you to write your representatives and help to repeal it.

 

[Samiam]

I gots only one word:

hukusbcf