The Military Commissions Act of 2006

[Grey_Fox]

Link to the text of the Bill

This Bill does, amongst other things (list taken from another site) the following things:

- Revokes Habeas Corpus

- Creates a secret committee appointed by the President and Secretary of Defense that has the power to declare any person (even a US citizen) to be an enemy, instantly depriving them of their legal rights. Right to appeal will be limited.
Emphasis mine:

(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.

- Allow police to search through your home without a search warrant.
- Ends protection of prisoners of war under the Geneva Conventions.
- Gives George W. Bush amnesty for any war crimes he has committed.
- Allows people to be put on trial in front of a kangaroo court military tribunal, even if they aren’t in any military, and have not engaged in military attacks against the USA.
- Allows the government to convict people of crimes on the basis of secret evidence that the accused never sees.
- Makes it legal for the government to use testimony extracted through torture coersion. (supposedly for aliens only)
- Ends the legal right to be protected from forced self-incrimination.
- Allows the government to imprison people without telling them what crimes they are being charged with.
- Allows for the records of trials to be kept secret from the American public.
- Enables trials to begin even before a thorough investigation of the alleged crime has taken place.
- Takes away the right to a speedy trial, allowing people to fester behind bars without being charged of any crime.

Why do you hate freedom?

[Keba]

My country had a similar system in place in the past, three instances, to be exact.

One, in Austria-Hungary ... that was called absolutism, and any politcal activity was strictly forbidden.
Two, again, totalitarian rule by the King, this case, Kingdom of Yugoslavia.
Three, puppet state of the Third Reich.

Now, I don't see any of the three as something that one should emulate.

[Reverend Joe]

*packs bags and quietly slips away to Holland*

[Ice]

That's a good face Zorba. I'm confused, what stage is this God awful bill at?

Edit: NVM. I just read Cnn, President Bush has already signed the bill.

[rory_20_uk]

Funny how quietly pieces of legislation creep onto the books, isn't it?

Almost like democracy is a veneer where both sides can argue about minor things, and then in the background say that they can deem people to be criminals, and then lock them up on evidence that is (in most countries) illegally obtained, and never seen by teh defendant... Or just leave them in jail for years.

[Crazed Rabbit]

From your link:

Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.

`Sec. 948a. Definitions

`In this chapter:

`(1) ALIEN- The term `alien' means an individual who is not a citizen of the United States.

Doesn't apply to US citizens.

Also:

`Sec. 948r. Compulsory self-incrimination prohibited; statements obtained by torture or other methods of coercion

`(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

`(b) 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 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 Detainee 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 it 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 Detainee 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 it 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 violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.

So much for allowing torture.

So, what site did you get this from?

Crazed Rabbit

[Reverend Joe]

Nowhere does it specifically state that US citizens cannot be subjected to this law. If it does not state it in plain text, it is not a certainty.

And of all the points brought up, you have refuted... torture and self incrimination. The one has been notoriously difficult to enforce; the other is a minor concern, when the Government can still provide evidence that the defense has no right to see, and thus refute.

Whoope-doo! I feel safe now- thanks a lot, Crazed!

[Seamus Fermanagh]

Nowhere does it specifically state that US citizens cannot be subjected to this law. If it does not state it in plain text, it is not a certainty.

The text specifically notes that "alien enemy combatants" may be brought before such tribunals, having previously defined "alien" as not a citizen of the United States. That's pretty plain.

And of all the points brought up, you have refuted... torture and self incrimination. The one has been notoriously difficult to enforce; the other is a minor concern, when the Government can still provide evidence that the defense has no right to see, and thus refute.

Yet all parties to the trial -- counsel, defendant, & commissioners, are to not only be provided with all non-classified evidence, but summaries or redacted versions of classified materials as well. And all parties to the trial will be provided the same evidence. It does NOT suggest that the commissioners will be granted access to the raw material while the other participants are to be excluded. If the only acceptable standard is for all raw data with sources and methods to be made available during a commission trial, then commission trials will not be used.

Further, any decision made by such a commission is automatically brought up for appelate review unless such a review is waived by the defendant. Even the defendant cannot waive such a review if the commission has imposed a sentence of death.

I have trouble seeing this as an unreasonable standard given the constraints involved.

[Ironside]

So much for allowing torture.

So, what site did you get this from?

Crazed Rabbit

Have you red the Fifth, Eighth, and 14th Amendments to the United States Constitution? Who are your only protection against torture according to that regulation?

Spoiler Alert, click show to read: 

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment XIV

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, quote me the part that forbids me from broking every bone in your body before I'm put to trial. I can find a formulation that protects me from torture (if it's defined as torture), after my conviction, but that's about it.

[Reverend Joe]

The text specifically notes that "alien enemy combatants" may be brought before such tribunals, having previously defined "alien" as not a citizen of the United States. That's pretty plain.



Yet all parties to the trial -- counsel, defendant, & commissioners, are to not only be provided with all non-classified evidence, but summaries or redacted versions of classified materials as well. And all parties to the trial will be provided the same evidence. It does NOT suggest that the commissioners will be granted access to the raw material while the other participants are to be excluded. If the only acceptable standard is for all raw data with sources and methods to be made available during a commission trial, then commission trials will not be used.

Further, any decision made by such a commission is automatically brought up for appelate review unless such a review is waived by the defendant. Even the defendant cannot waive such a review if the commission has imposed a sentence of death.

I have trouble seeing this as an unreasonable standard given the constraints involved.

Seamus, I see no NOT in that statement. Where it does not state clearly "NOT", you cannot assume "NOT". And that is the point.

And as for evidence:

(c) Protection of Classified Information- (1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--

`(A) the deletion of specified items of classified information from documents to be made available to the accused;

`(B) the substitution of a portion or summary of the information for such classified documents; or

`(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

(d) Exculpatory Evidence- (1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).

There is no way of knowing the accuracy of these substitutions; not to mention the fact that it makes the evidence itself impossible to refute because all you have is the facts- you have no support.

I would call that a pretty easy way to hide evidence from the defense.

And I have yet to see any response to the other points. Or have you not had enough time to nitpick?

[BigTex]

Have you red the Fifth, Eighth, and 14th Amendments to the United States Constitution? Who are your only protection against torture according to that regulation?

Spoiler Alert, click show to read: 

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment XIV

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, quote me the part that forbids me from broking every bone in your body before I'm put to trial. I can find a formulation that protects me from torture (if it's defined as torture), after my conviction, but that's about it.

You make it easy

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Breaking every bone in your body is cruel and unusual. Breaking every bone in ones body would also constitute a judgement without due process.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

While its shocking that this passed, citizens are excluded, you can't invalidate the bill of rights, regardless of the reasons. Doing so would violate your oath and could constitute treason.

But last I checked its currently October 17th 2006 get with the times.

__________________
Speak softly and carry tactical nukes.

BigTex

Ridicolus
"Hilary Clinton is the devil"
~Texas proverb

[Crazed Rabbit]

Seamus, I see no NOT in that statement. Where it does not state clearly "NOT", you cannot assume "NOT". And that is the point.

The bill also does not state anywhere that it is illegal to hang a kitten in the courtroom during these comissions. Oh my gosh! That means you can hang kittens! Perhaps you need to read this again:

`Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.

That means a non-citizen. A non-citizen is someone who is not a citizen of the USA.

There is no way of knowing the accuracy of these substitutions; not to mention the fact that it makes the evidence itself impossible to refute because all you have is the facts- you have no support.

I would call that a pretty easy way to hide evidence from the defense.

And I have yet to see any response to the other points. Or have you not had enough time to nitpick?

Oh please. You're assuming that the law won't be followed, and like your previous 'argument' you seem to be convinced of something that is flatly contradicted. You're making a bogeyman out of nothing.

Crazed Rabbit

[Xiahou]

I have trouble seeing this as an unreasonable standard given the constraints involved.

Seconded.

It clearly does not allow for citizens to declared unlawful combatants- contrary to the claim otherwise. CR also showed clear contradictions of most of the other claims by a simple reading of the actual law.

You probably could've gotten alot more outraged responses by not posting an actual link to the law- it would've taken a bit more effort for someone to go dig up the text themselves and prove your original quotes wrong.

[Seamus Fermanagh]

Have you red the Fifth, Eighth, and 14th Amendments to the United States Constitution? Who are your only protection against torture according to that regulation?...

Now, quote me the part that forbids me from broking every bone in your body before I'm put to trial. I can find a formulation that protects me from torture (if it's defined as torture), after my conviction, but that's about it.

Nothing in the Constitution forbids you, as a private individual, from breaking every bone in my body. No constitution or law, of itself, can prevent such a thing either. Were you to do so, you would have broken the laws of the Commonwealth of Virginia, and the appropriate authorities would put you on trial for that action.

The Constitution does seek to prevent such a thing occuring at the direction/behest of some government authority, especially in the absence of due process.

Congress has now mandated a basic set of standards and procedures under which these detainees (alien, unlawful enemy combatants) may be given due process. The process outlined falls short of the ideals striven for in U.S. courts, but does seek --within constraints imposed by national security etc. -- to protect detainees against self-incrimination, provide for legal representation, grant the fullest practical access to evidence, etc.

I am happy that Congress took an active role in this, as I did reluctantly agree with the SCOTUS that doing it entirely "in house" was overstepping executive authority. I believe that Congress has done a fair job of striving for the greatest degree of "fair and equitable" legal process within the constraints of national security concerns and the difficult nature of the "terrorist" opponent.

[AntiochusIII]

There was already a thread some time ago by the title along the lines of "America allows torture." I did spent my time reading over the law myself, being reluctant to accept the claim. It didn't make me feel any better.

A pathetic irony. The Admiralty Courts were such great ideas that the Americans rebelled. Oh yes.

How absurd. Weren't some of you such ardent defenders of the principle of limited and minimal government just some time earlier? How wondrous the tables have turned so quickly to advocate such a power those evil Liberals are outraged at--for security's sake, too! Or, maybe, because you people are also fixated by the apparent idea that the very large Bill would have absolutely no loopholes for the government to exploit when it comes to citizens. Of course, no humans matter beyond citizens, that is obvious enough.

By all means, this damn law essentially allows a military court for those who might or might not be a combatant or might or might not be associated with them. The "technicalities" of torture and that [expletive]? I don't even want to go there.

Military courts have never been renowned for their civil justice now, do they?

[Keba]

Well, I looked it through, here's a nice rundown of abuses of this particular law, and one very clearly illegal and unconstitutional part.

One ...

`Sec. 948d. Jurisdiction of military commissions

• `(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

The base rule in legal science is that no law, no matter how important can apply backward in time ... laws can only apply to future events or relations ... never for those in the past. Basis for repeal of law in every civilized country.

Two ...

`(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.

Vague wording. It may never become practicable for the defendant to be even informed of the charges against him, thus robbing him of a proper defense.

Three ...

• `(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.

Now, according to this, coercion can still be allowed, it is not prohibited, but rather, it is acceptable in court under certain conditions. Granted, I don't know the contents of section 1003 of the Detainee Treatment Act of 2005, but there is still coercion here, so, yes, a limited form of torture is still possible.

Note section 2 ... in the interests of justice. An interesting use of words. Essentially, one can cram everything under this section and make torture applicable.

Four ...

• `The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had. Such charges shall be served in English and, if appropriate, in another language that the accused understands. Such service shall be made sufficiently in advance of trial to prepare a defense.

Again, vague wording, how long is sufficient to prepare a defense? Five minutes, a week? A year?

So, yes, you will be notified of your charges, but it is entirely upon them to notify you, whenever they feel like it.

Five ...

`(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).

`(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.

Now here's the interesting bit ... herarsay is acceptable as evidence, as long as the defendant is notified sufficiently in advance. Again that word ... who determines what is sufficient?

Note part two ... now, can someone explain to me how do you refute rumours?

Six ...

`(a) Sessions Without Presence of Members- (1) At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of--

`(B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members;

• `(e) Exclusion of Accused From Certain Proceedings- The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom--

• • `(1) to ensure the physical safety of individuals; or

• • `(2) to prevent disruption of the proceedings by the accused.

Trial without presence of the defender anyone? How does one define disruption? I can move in my chair, it makes a sound, and that might be a disruption ... vague wording ... again.

Seven ...

`(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.

What a nice way to circumvent the whole thing ... it's a matter of national secruity. And considering the sheer amount of stuff declared a matter of national security, it will be a miracle if a defendant can question a witness without the prosecutor shouting 'National Security'.



In either case, I'm tired, it's past midnight, and staring at laws can make the eyes hurt.

[Reverend Joe]

The bill also does not state anywhere that it is illegal to hang a kitten in the courtroom during these comissions. Oh my gosh! That means you can hang kittens! Perhaps you need to read this again:

That means a non-citizen. A non-citizen is someone who is not a citizen of the USA.

Oh please. You're assuming that the law won't be followed, and like your previous 'argument' you seem to be convinced of something that is flatly contradicted. You're making a bogeyman out of nothing.

Crazed Rabbit

According to the law, (if we disregard the animal rights laws) yes, you can technically lynch a kitten in the middle of the courtroom; of course, it might be objected to, on the grounds that it disrupts the trial.

A law has to be specific in order to prevent something; if it is not specific, it does not prevent.

Take a look at the second amendment, for example:

"A well regulated Milita, being necessary to the security of a free State, the right to people to keep and bear Arms, shall not be infringed."

This law is a way of setting up a legal State-run milita, so it allows the militamen to keep and bear arms. However, it does NOT say that psychopaths living alone in the woods who shoot people cannot bear arms either- and thus they can. The writers of the Bill of rights had no concept of this, of course; the writers of this law know damn well what they have omitted.

As for the section on evidence- we are reading the same lines, right? Then again, I can't blame you for not understanding legal gobbeldygook; but again, there is no way of regulating how accurate the reports to the defense will be on the nature of classified evidence. In fact, all that is required to be shown is the facts that it will present; not where they come from, or what their support or backing is.

AND ONCE AGAIN- no response to other problems raised. Just gonna stick with the same damn talking points, are we?

[Ironside]

You make it easy Breaking every bone in your body is cruel and unusual. Breaking every bone in ones body would also constitute a judgement without due process.

If it's used for intelligence gathering, it isn't a judgement nor a punishment. Had ammendment mentioned cruel or unusual treatment, then the question would only be: What constitute as cruel and unusual treatment?

Now, according to this, coercion can still be allowed, it is not prohibited, but rather, it is acceptable in court under certain conditions. Granted, I don't know the contents of section 1003 of the Detainee Treatment Act of 2005, but there is still coercion here, so, yes, a limited form of torture is still possible.

Section 1003 of the Detainee Treatment Act of 2005 (or more specifically, the part that refers to protection agaisnt torture), refers to some UN document were US agrees to to follow those human rights that's in accordance to ammendment 5, 8 and 14. The update is basically that cruel and unusual treatment is now also considered inhuman (inhuman treatment does not need to be considered cruel and unusual though , but that's more about general weirdness of laws). Did post more thorough info on this part in the last thread about this one or some very simular law, but I'm too tired to dig it up currently.

[Xiahou]

Well, I looked it through, here's a nice rundown of abuses of this particular law, and one very clearly illegal and unconstitutional part.

One ...

The base rule in legal science is that no law, no matter how important can apply backward in time ... laws can only apply to future events or relations ... never for those in the past. Basis for repeal of law in every civilized country.

It's not applying new penalties to past crimes nor is it criminalizing past acts. It is setting up a court to hear the matter- the difference is obvious.

Trial without presence of the defender anyone? How does one define disruption? I can move in my chair, it makes a sound, and that might be a disruption ... vague wording ... again.

The exact same exception exists under civillian courts- you're trying to paint this as some kind of new abuse when it's neither new or an abuse.

The whole law revolves around the SCOTUS ruling that the Executive branch, on its own, could not constitute a new court for the trial of detainees. In response, both houses of congress passed a law constituting a new court for the above purpose. I'll dont think this will be overturned as it has the weight of 2 branches of government now behind it- however, if it is overturned it'll likely be on technical grounds not fundamental ones.

[Crazed Rabbit]

According to the law, (if we disregard the animal rights laws) yes, you can technically lynch a kitten in the middle of the courtroom; of course, it might be objected to, on the grounds that it disrupts the trial.

Take a look at the second amendment, for example:

"A well regulated Milita, being necessary to the security of a free State, the right to people to keep and bear Arms, shall not be infringed."

This law is a way of setting up a legal State-run milita, so it allows the militamen to keep and bear arms.

As for the section on evidence- we are reading the same lines, right? Then again, I can't blame you for not understanding legal gobbeldygook; but again, there is no way of regulating how accurate the reports to the defense will be on the nature of classified evidence.

Based on your 'understanding' of the 2nd amendment, I wouldn't trust your 'understanding' of any laws.

The law is very specific, it allows these trials ONLY FOR ALIEN UNLAWFUL COMBATANTS. This means that anyone who is not an unlawful alien combatant cannot be tried in these courts. Pretty simple.

I'm not going to scan the whole bill to refute a list some lefty put up on some blog or somesuch. The list at the begining has no proof of any allegations, and seeing the ease with which the major ones have been dispatched, I don't think the small claims would fare much better.

Crazed Rabbit

[Papewaio]

Great so why should any non-US citizens feel keen about allying with a country that is prepared to do torture... we weren't to fond of the Cold War opposition who we caricatured their due process as shoot first and ask questions later, we didn't think to highly of the KGBs methods nor the Stasi.

So what is in it for all the allied alien governments and their citizens?

Why pray tell should we stay allied to a country that is so hell bent on changing its ideals?

Where is the moral leadership out of the mire of the 21st century let alone the moral high ground?

If it is down to economic arguements... then your weight will diminish rapidly as the Indian and Chinese economies per capita income increase.

If it is down to shared history... all I can say is that history is not as important as a shared present and future.

In short if there is nothing for us in shared ideals or benefits like not having our citizens tortured then show us the money or f-off.

"Truth, Justice and the American Way" is no longer a superfluous statement.

[Reverend Joe]

Based on your 'understanding' of the 2nd amendment, I wouldn't trust your 'understanding' of any laws.

The law is very specific, it allows these trials ONLY FOR ALIEN UNLAWFUL COMBATANTS. This means that anyone who is not an unlawful alien combatant cannot be tried in these courts. Pretty simple.

I'm not going to scan the whole bill to refute a list some lefty put up on some blog or somesuch. The list at the begining has no proof of any allegations, and seeing the ease with which the major ones have been dispatched, I don't think the small claims would fare much better.

Crazed Rabbit

"On a deaf man's door, you can knock forever!"

[Xiahou]

Great so why should any non-US citizens feel keen about allying with a country that is prepared to do torture... we weren't to fond of the Cold War opposition who we caricatured their due process as shoot first and ask questions later, we didn't think to highly of the KGBs methods nor the Stasi.

Nice shot at moral equivalance there. We're creating courts with evidentiary and procedural standards to determine if a person is an unlawful combatant as opposed to summary execution as spies that would've been more common in the regimes that you're attempting to draw parallels to.

Our allies apparently don't care one bit about their citizens that we have in custody- numerous time we've been unable to release detainees because their own countries (like the UK) refuse to take them back when offered- therefore deliberately leaving their own citizens in legal limbo. It's interesting to me that they call for the prison at Gitmo to be closed when they are unwilling to take back their own citizens that are held there.

"On a deaf man's door, you can knock forever!"

I agree- you're going to stick the your first impression that reads like it was nicked from some liberal blog even in the face of clear contradictions from the text of the law in question. Your mind is already made up and your ears are shut- further discussion is pointless.

[Papewaio]

Australia deports illegal immigrants.

There have been a couple of cases where people have not been able to prove that they are Australian (most of these have been mentally ill) and have been deported despite the fact that it turns out later they where Australians.

So the idea that this will get only non-Americans relies on all Americans to have some sort of identity card to prove who they are and/or for the government to get it right every time.

Also it is disgusting to have one set of laws for some and another for others particular when it is for the likes of suspending Habeas Corpus, and for allowing torture. Here is another moral equivalence... name a nation that had humans and sub-humans enshrined in law? South Africa under Apartheid wasn't exactly a shining light for humanity, but I'm pretty sure places that have more then one class of human have been even worse.

But I'm sure every US citzen will like it if recipricol laws are written up in every other country in the world that states. "No one shall be tortured and shall have due process applied except citizens of the US who all rights are forfeit."

One for all, all for one. Makes for nice mottos and a hallmark of justice.

[Seamus Fermanagh]

Once again, it comes down to the ever-shifting tension between ideals and practicality.

Please note, I am not saying this to be dismissive.

Without ideals, principles that you strive to maintain and spread, your accomplishments are cheapened and their value ephemeral.

Ideal principles, however, are not always practical for achieving basic objectives.



As an ideal, the "rule of law" and promotion of individual freedom would express itself, juridically, as:

an impartial court administering the trial as a quest for justice under accepted principles, including:

* a presumption of the innocence of the accused until guilt is demonstrated beyond a reasonable doubt
* competent legal counsel of their own choice available to all defendants
freedom from self incrimination
* an absolute prohibition of any evidence gathered under any form of duress or coercion (let alone active torture and the like)
* an open demonstration of all evidence including sources and methods by which that evidence was gathered, with this information made available to defendant and counsel several weeks or more in advance of trial
* a nearly absolute prohibition of hearsay and supposition, with limited exceptions made only where no other means of providing the evidence is found (e.g. 2nd-hand related testimony of a dying individual)
* counsel, judges, jurists, and other officers of the court who are motivated solely by a desire to determine the truth of an alleged perpetrator's guilt or innocence and who are free from ulterior agendas and not bribeable
* A reasonably prompt process through the juridical proceedings being used, so as to minimize any accidental harm to the accused
* Some for of juridical review/appeal to which the parties in the dispute can address concerns regarding shortcomings in any of the aforementioned
* A prohibition against prosecution more than once for the same alleged offense
* That these principles should be afforded to any defendant regardless of nationality, creed, citizenship, or the larger context of conflict in question

These are the ideals, the principles for which most of our legal systems strive when attempting to create "due process" under the rule of law. They are worthy goals and represent the cumulative wisdom of many generations.

Are they practicable in that form in handling the constraints of a "war on terror?"

A fully open demonstration of evidence, for example, would require the disclosure of classified information used in the ongoing conflict against terror groups so that the defendant and counsel might provide countering evidence that so-and-so is an unreliable source, that no prior legal sanction for a particular telephone intercept was granted so that evidence should not be presented, and the like. As a byproduct of this, many of the clandestine sources would be far more likely to be exposed and thereby risk harm. This would, in all likelihood, greatly diminish access to such information as sources became less willing to take such a risk.

If the prohibition against duress is absolute, than any individuals arrested because their names came up in such an interrogation -- even where subsequent evidence against them was acquired -- would be invalid as the original source of suspicion was tainted. Whether we conceive of them as criminal or warrior, many of the terror detainees view themselves as warriors and will actively oppose any attempt to extract information from them against their compatriots. "Plea Bargaining" deals for information and the like are probably going to be less than fruitful. A prohibition against all forms of duress will inevitably limit the amount of information gathered.


Many of you have commented that any "war on terror" can only be successfully prosecuted with effective intelligence. Almost any effort that is made beyond those that are purely defensive in character or directly responsive to a particular attack -- anything that truly takes the war to the enemy -- can only be contemplated if there is adequate intelligence. Yet an absolute adherence to the ideals of "due process" are likely to limit that ability.


So we have, again, that classic tension between ideals and practicality.

Should we be mindful of the potential for abuse whenever we fail to adhere fully to our principles? YES! Tread cautiously and think carefully of the ramifications. The SCOTUS was absolutely correct to force the executive to curb its actions until the scope of those actions could be defined and regulated via the legislative process.

Should we be wary of using duress as a tool and circumscribe that use carefully? Of Course. Inhumanity and cruelty can harm both the victim and the interrogator. The use of such techniques is not an appeal to the angels of our better nature and taken too far replaces one form of terror with another.


It is my belief that we have to find some useful means of balancing the ideals for which we strive and which make us who we are, with the practical means necessary to defend our lives and our way of life.

The law signed today regarding these commissions is probably not perfect -- legislation rarely is. I do think it represents a fairly good effort to resolve this tension between practicality and principle in a fashion that allows us to defend ourselves without losing ourselves in the doing.

I do not see it as a carte blanche for CIA operatives to sweep in and arrest some poor Kiwi for pubbing an I-Hate-GWB blog or for the Delta Force to snatch up a dozen Shia clerics so that they can be waterboarded to force them to reveal who's going to vote against the U.S.-preferred candidate in the next round of Iraqi elections. Yet that is exactly what many of you see as the practical result of this law.


So, a couple of questions for you to ponder for yourself:

Do you oppose this law because you believe that the high principles for which we strive are an absolute requirement? If so, is that requirement so absolute as to be worth the destruction of your society so long as you do not demean the principles of that society?

Is the USA just, in your opinion, bent out of shape over nothing? Is the war on terror just a farce? Would it be a better world if the USA returned to its Pre-Bush stance against terrorism, learned to accept that some casualties are part of the cost of modern existence, and work to ameliorate the problem by pulling back from efforts to influence other nations and/or throw its power around?

Are you concerned only with success? Do you wonder why we bother with such inanities as "due process" for an enemy when the most practical method of dealing with the problem is narco-interrogation/waterboarding followed by a bullet?

Answer if you wish. My point is to get you to think about instance of "tension." How would you do better?

Okay, I'll shut up now.

[Crazed Rabbit]

What section allows torture? The sections I've quoted here disallow it.

"On a deaf man's door, you can knock forever!"

To the deaf man knocking on your door, you can yell forever.

So this is how you act when faced with overwhelming contradiction to your claims?

I agree- you're going to stick the your first impression that reads like it was nicked from some liberal blog even in the face of clear contradictions from the text of the law in question. Your mind is already made up and your ears are shut- further discussion is pointless.

Exactly. Funny he accused me of sticking to talking points. All I did was look at the actual law and make my opinions based on that. I didn't visit any blogs or read the latest memo from the RNC.

Crazed Rabbit

[IRONxMortlock]

Way to protect freedom!

It appears to me that this law is an attempt by certain folks in the US government to avoid being prosecuted for war and other crimes by changing the laws after they’ve broken them.

Regardless of why this law was enacted though, I now wash my hands of the United States. It doesn't matter if habeas corpus is removed only for non-citizen "unlawful enemy combatants" (whatever that is supposed to mean), it is incomprehensible that a modern, supposedly democratic country could remove it at all. It is the action of a rouge state not worthy of respect.

The United States has now lost the little remaining credibility it had to presume to protect and fight for freedom and democracy in my eyes. I truly look forward to the time these kinds of draconian laws are repealed and the United States can once again take its place with the other nations of the world who value justice and freedom.

[Slyspy]

Do you oppose this law because you believe that the high principles for which we strive are an absolute requirement? If so, is that requirement so absolute as to be worth the destruction of your society so long as you do not demean the principles of that society?

Is the USA just, in your opinion, bent out of shape over nothing? Is the war on terror just a farce? Would it be a better world if the USA returned to its Pre-Bush stance against terrorism, learned to accept that some casualties are part of the cost of modern existence, and work to ameliorate the problem by pulling back from efforts to influence other nations and/or throw its power around?

Are you concerned only with success? Do you wonder why we bother with such inanities as "due process" for an enemy when the most practical method of dealing with the problem is narco-interrogation/waterboarding followed by a bullet?

Yes.

Yes.

No.

Amendment XIV

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of course that may not apply to The State as a opposed to A State, but I believe that last bit to be the important part.

I think what Zorba is saying is that while the Bill (now an Act?) specifically states that is applies to aliens, nowhere, according to his reading, does it specifically state that it does not apply to citizens. His claim is that this is implicated, but not specifically stated, and that such vague wording in a piece of legislation is a bad thing.

Of course I'm not a Yank, so what do I know? I'm just trying to translate other people's posts for you!

[Keba]

It's not applying new penalties to past crimes nor is it criminalizing past acts. It is setting up a court to hear the matter- the difference is obvious.

It doesn't have to ... any law appyling backward is againast quite a few rules. The only exception are individual laws, concerning precisely specified individual cases and with a narrow jurisdiction.

General laws (such as this one, as it applies to quite a few people and quite a few crimes) cannot and must not apply bacwards in time.

Let us pull out an example of a general law. Long story short, the parliament votes a law in that says, all those who finished Law School have doctorates of Law. Several months later, the Constitutional Court repeals the law as unconsitutional ... it applied backward in time. If they would repeal something as silly as that, then they would repeal this farce of a law.

I think what Zorba is saying is that while the Bill (now an Act?) specifically states that is applies to aliens, nowhere, according to his reading, does it specifically state that it does not apply to citizens. His claim is that this is implicated, but not specifically stated, and that such vague wording in a piece of legislation is a bad thing.

I'd agree with this statement. The whole Alien unlawful combatant is mentioned once ... just once, and in the beginning. Here's the bit ...

`Sec. 948c. Persons subject to military commissions

• `Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

Notice the wording ... any alien unlawful enemy combatant is subject to trial by ... blah, blah, the rest isn't relevant right now.

That means that this trial is mandatory for all alien unlawful enemy combatants. However, it doesn not absolve anyone else from it. See, they could put a US citizen who is a lawful enemy combatant on trial, and it wouldn't matter one bit, why? Because while the trial is mandatory for every alien unlawful enemy combatant, it doesn not actually provide portection for anyone else.

Therefore, the bill does, by omission allow anyone, and I mean anyone to be tried by military commission. And anything that is not in the law, unless expressly forbidden, is allowed, according to long-standing pracitce. Therefore, anyone can be tried.

I hope that answers your questions about who can and cannot be tried. Anyone can.

[Blodrast]

Do you oppose this law because you believe that the high principles for which we strive are an absolute requirement? If so, is that requirement so absolute as to be worth the destruction of your society so long as you do not demean the principles of that society?

Hopefully you won't be too upset that I'm only addressing this part of your post. Tell me, Seamus, do you believe that a society should bend and twist its ideals to whatever ends, just so it can survive ? I deem that that is not a society worth surviving. Flexibility and changing with times is one thing; drastic changes in the very principles on which that society has been founded is another thing altogether.

If it's not clear, then my answer to your question would be yes.

If the powers that be deem it necessary at some point that it is necessary for the survival of this society to abolish gun ownership, would that be okay ?
If the powers that be deem it necessary for the survival of the society to abolish freedom of speech, this being the only way the society can continue to exist, would you agree with that too ?
Where do you stop ? Is anything that is deemed "necessary" (e.g., for a successful campaign in our neverending "war on terror") automatically justified and acceptable then ?