Yonatan Zunger’s Blog

In case you haven’t read, the Military Commissions Act of 2006 passed the Senate on a roll-call vote by 65 to 34, with one abstention. Put briefly, this bill suspends most of the Constitution, stating that anyone not a citizen may be arrested and tried under military law, absent the rights to challenge evidence, have counsel of their choosing, call witnesses, or challenge the basic cause for their detention under habeas corpus. Conviction is by a majority vote of the military commission under secret ballot; they may be appealed to a military appeals court, and thence to a civilian court. (Note that this is a bit milder than some of the previous situation, in that it only affects non-Citizens; but note also that the key provision of the 14th amendment is that the rights stated under the Constitution apply to all persons, not only to citizens. This was instated soon after the Civil War, when freed blacks were persons but not citizens. You may notice that the executive branch also has the ability to strip citizenship)

Sections 7 and 8 effectively give blanket immunity to US personnel for charges of war crimes, specifically w.r.t. the Geneva Conventions. Basically, it redefines the War Crimes Act to allow whatever the President says. (Sec. 8.a.3 of this bill)

Some good news: This isn’t the first time our country has suspended the Constitution in some wholly unconstitutional manner; each time it was realized and reverted a few years later. I suspect that the same will happen here, after our current President — may his name and his memory be erased — is gone and the Congress cleaned up as well. It’s very important to do that, soon, before (more) lasting damage is done: remember to vote in this coming election, no matter where you are, and if you can contribute to electoral races, do so. And next election. And the one after that.

(On the subject of lasting damage: No real developments in the Arar case since the Canadian government’s report. Apparently they admit that they mistakenly tagged him as a terror suspect and gave this information to the US; the US promptly shipped him off to Syria to be tortured. The Canadian government apologized. But that doesn’t answer the basic question of where the safety checks went that would keep a single mistaken identification from sending someone off to a torture chamber for a year — isn’t this precisely why we have a rule of law?)

The President has started circulating draft legislation to establish military tribunals for the trying of “enemy combatants,” in response to the Supreme Court’s Hamdan ruling. (WP article here) Quick bullet points from this: An “enemy combatant” is defined pretty loosely, including an “individual who is or was part of or supporting Taliban or al Qaeda forces or associated forces,” (sec 103B) without specification on the nature of the support. The bill establishes tribunals with authority up to and including the death penalty.

Good news: they allow defense counsel as per military rules, i.e. appointed by the court; civilian counsel is permitted if they satisfy various additional requirements (sec 215b2) they prohibit self-incrimination or evidence obtained via torture (sec 211). Defense has access to compulsory process for obtaining withesses “similar to” that of civilian courts. (sec 222.a) Certain punishments are explicitly prohibited: “flogging… branding, marking, or tattooing on the body… the use of irons, single or double, except for the purpose of safe custody.” (sec. 228)

Bad news: Proceedings may be closed to the public, or to the accused, “upon a finding by the military judge that doing so is necessary to protect the national security, to ensure the safety of individuals, or to prevent disruption.” (Sec. 216.c.3) In such a case the accused will be provided with a “redacted or unclassified summary of evidence… if it is possible to do so without compromising… national security interests.” (216.c.4) There was a sentence “No evidence shall be admitted to which the accused has been denied access if its admission would result in the denial of a (fair trial?),” but that sentence seems to have been edited out. (216.c.4) The denial of hearsay evidence (sec 102.7.b), the right to a speedy trial, and the “technical rules for sworn and authenticated statements” (102.7.c) are explicitly rejected.

Mixed: Appeals go the “convening authority,” i.e. the Secretary of Defense (sec 232) After all such appeals, the US Court of Appeals for the DC circuit has appellate jurisdiction.

Overall, this bill is marginally better than the pre-Hamdan situation, in that it allows for some judicial review of proceedings, but it still has the basic problems: anyone may be entered into this military system by the exclusive decision of the Secretary of Defense or designated officers, without the need for indictment by a grand jury, and while within this system several parts of the Constitution are effectively suspended. (Article III sec. 2 p. 3 [jury trial]; amendment V, first provision [grand jury] and arguably the fourth [due process]; all of amendment VI except for a weakened version of the right to counsel; amendment VIII, first provision [excessive bail]; article I, section 9 pp. 2 [habeas corpus]) In practice, this appears to be an imposition of martial law in parallel to civilian law: the military is entitled to try people by its rules whenever it sees fit. The best argument against that seems to be a trust that the government will not abuse this power, but that’s a pretty poor argument when several stages of the bill explicitly remove the usual procedural safeguards that obstruct that. I’ll also point out the slew of reports about the actual main uses of the Patriot Act: to obtain information in drug cases and other non-terrorism-related issues. Given an alternate legal procedure that’s easier for prosecutors, they will systematically use it to go after people they see as bad; that’s completely natural, but that’s why we have the Constitution in the first place.

The President’s own public statements indicate that the objective is to be able to hold such prisoners “for the duration of the war,” but other statements of his indicate that the war is likely to be permanent, so I’ll leave the details to the reader.

Now, in practice: this bill is unlikely to come to the floor very quickly, but it may be intended for use as a political football during the midterm elections. Those elections are likely to be crucial: if the Republicans lose substantial support, and especially if they lose control of one or both houses of Congress, all such procedures are likely to vanish pretty quickly; if on the other hand the Bush movement feels that they can claim even a tenuous mandate post-election, they are likely to push very hard for measures like this and stronger ones elsewhere.