Issue #51
Last Update May 5, 2007
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National S. 3930 by David Katz The Military Commissions Act 0f 2006, passed recently by the Senate after much negotiation with the White House, is a clear attempt to immunize Administration, CIA and military officials against war crimes charges. Many of its provisions are retroactive, in effect pardoning those that contravened existing law. A close reading of the text of this Act (something which, to judge by its predecessor Patriot Act, has probably not been done by a significant number of senators that voted for it) reveals the following:
The Act distinguishes between lawful and unlawful enemy combatants, and applies, in the main, only to unlawful enemy combatants, which is defined as (1) 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 combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (2) a person who, before, on or after the date of enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or other competent tribunal established under the authority of the President or the Secretary of Defense. A lawful enemy combatant is defined to be (A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States. It further states that only alien unlawful enemy combatants are subject to military commissions. Note three things about these definitions:
1. The difference between lawful and unlawful enemy combatants seems to reside in the presence or absence of a uniform and chain of command.
2. Regardless of (1), a member of the Taliban or Al Qaeda is considered an unlawful enemy combatant, despite the fact that the Taliban was, in fact, the governing party of Afghanistan at the time of our attack.
3. An alien, defined in the ACT as someone who is not a citizen of the United States, can, in fact be a legal, permanent resident of the U.S. This act withdraws all customary legal protection from such persons.
4. A person can retroactively be declared an unlawful enemy combatant; furthermore, there is no definition of the term “materially”, leaving the President, Secretary of Defense and their subordinates free to define it as they will.
Having established these definitions, the Act then states that the procedures set forth are based on the Uniform Code of Military Justice, but that this code does not apply to trial by military commissions except as specifically provided in this Act. The judicial construction and application of the Uniform Code of Military Justice are not binding on military commissions established under this Act. It specifically rules out any right to a speedy trial, eliminates the prohibition against compulsory self-incrimination (this will become cleared when we reach the parts on coerced testimony), and eliminates the protections of Article 32, which include the right to a preliminary investigation to determine if there is any basis for charges, the right to be represented at that investigation, cross examine witnesses and present evidence in his own behalf, and the right to demand further investigation after charges have been filed, reexamine witnesses and offer new evidence. It also eliminates the use of any precedent or interpretation set at any UCMJ hearing or court-martial. The military commission is arbitrarily declared to “afford all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions”, yet no alien unlawful combatant subject to trial by military commission under this Act may invoke the Geneva Convention as a source of rights.
In effect, these paragraphs authorize unlimited detention without trial, coerced testimony (torture), and any right to what would, in regular courts, be an indictment. It both declares that the requirements of the Geneva Conventions are met, and disallows any reference to the Geneva Conventions as a source of defendant rights.
The next section of the Act states that a finding, whether before, on or after the date of the enactment of the Military Commissions Act of 2006, by any tribunal established by the President or Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction. That is, if the President, Secretary of Defense or some body created by them say a person is an unlawful enemy combatant, there is no recourse or appeal from that decision.
Although a section of this Act states the no person shall be required to testify against himself at a proceeding of the military commission, and that statements obtained by torture are inadmissible, a military judge may admit such statements if the degree of coercion is disputed and he 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 the 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 the Detainee Treatment Act of 2005. It is worth noting that this act only applies to Department of Defense facilities; prisoners held by the CIA, for example, are exempted, as are the results of “extraordinary rendition”, that is, outsourcing torture to another country. The Detainee Treatment Act fails to provide a precise definition of torture. In addition, the President, in his Signing Statement, said he did not intend to be bound by its provisions, anyway. These paragraphs leave a hole big enough to drive a Humvee through in terms of permitting testimony that results from torture.
Evidence is permitted that was seized without a search warrant or other authorization, and hearsay evidence is permitted if warning is given to the defense. It can only be blocked if the defense can show that the evidence is unreliable or lacking in probative value.
The Act calls for withholding evidence from the defense if it is classified. Although some paragraphs require that summaries be presented in lieu of the classified information, and others allow the defense attorney, properly cleared, to view the material in certain circumstances, this imposes a grave handicap for any defense. Furthermore, during the examination of any witness, trial counsel (the Prosecutor) may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Testimony or documents embarrassing to the prosecution can be eliminated by the simple act of classifying them or claiming that classified information would be exposed.
Although the defendant is given no right of appeal to US courts, the government may appeal adverse rulings by a military commission or the Court of Military Commission Review (another Department of Defense creature) to the US Court of Appeals in Washington DC, and further, to the Supreme Court. The Act eliminates any judicial review for the defendant by stating that no court, justice or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever relating to the prosecution, trial, or judgment of a military commission under this Act including challenges to the lawfulness of procedures of military commissions under this act. Habeas Corpus is specifically denied. Congress here has told the judiciary to go peddle its papers.
A final section, headed Punitive Matters, defines actions that subject someone to a military commission trial, including permitting those under one's command to commit certain acts against civilians. This is ironic in the light of the definition of an unlawful enemy combatant, which assumes that no command responsibility is present.
These are only some of the provisions that make military commissions into kangaroo courts. Congress, in this Act, gives the Secretary of Defense pretty much a free hand with non-citizens, requiring only that an annual report (details unspecified) be made to Congress each year with statistics of cases tried, and that changes in rules of procedure be reported to Congress 60 days before the change. Congress should be ashamed.
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