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The Tribunal Controversy
Posted by: McQ on Monday, October 23, 2006

I'm not a lawyer (and don't play one on TV) so I have a tendency to avoid the technical legal issues of most rulings and findings until I've read all I can read which satisfies me that I have, at least, an inkling of an understanding of the legal arguments which surround certain issues.

I'm still not satisfied I've met that criteria concerning the new "tribunal law" but still would like to discuss it and hear other opinions. The reason I call it a "controversy" in the title is because of the disagreement on both sides of the issue (as usual). Each side is sure they have the Constitution on their side. Obviously that means the usual hyperbole is extant. It seems it is no longer possible to discuss issues such as this without Gore Vidal type pronouncements of doom and gloom on one side and happy unicorn and fairies talk on the other.

So what is the law? Well here's how AP has broken it down thusly as far as who the law allows to be detained by the military:
> The military can detain any foreigner it believes is an "unlawful enemy combatant."

> The new bill defines this as anyone "who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents."

> The military can detain an individual indefinitely if it believes he is a threat to combat forces or U.S. citizens.

> The court would not be used to prosecute U.S. citizens or individuals who fight in foreign forces on behalf of a sovereign state.
Some of the criticism has said that the term "unlawful enemy combatant" (UEC) is overly vague and will be examined by the court to see if it meets the US Government's obligations under the Geneva Conventions. Fine. That's what courts are for. However, other than more explicitly defining (or requiring a more explicit definition) of unlawful enemy combatant, the one thing that remains unclear to me is what obligations, other than those we impose on ourselves, we have to non-state actors who haven't themselves ratified the Geneva Conventions? As I understand those conventions, they primarily deal with nation-states and their citizens, and are reciprocal in nature. That is the obligations are not "one-sided".

That's one of the things, at least for me, which still needs clarification.

A lot of critics have a problem with the notion of the military holding an individual "indefinitely" if he is believed to be a threat to combat forces or US citizens.

Frankly that sounds a lot like the reasons we hold POWs. We certainly hold them "indefinitely", we don't charge them with anything other than being an enemy soldier, and they are certainly not entitled to any right of habeas corpus.

So this isn't particularly new. What is new, and breaks new ground (and goes back to my point about explicitly defining "unlawful enemy combatant") is we've never fought a war like this (it is not explicitly against the forces of a nation state). Consequently, we do have to put new processes and procedures together to address these new realities.

I'm not uncomfortable with treating these UECs as we have POWs in war's past. However I do think we need to be very careful about how we define the UECs because the chance of being overly broad and thus violating the rights of the innocent, are entirely possible. That is my biggest concern. Not that we're going to deny UECs habeas corpus and keep them for the duration, but instead, as with any well-intentioned law, its broadness opens it to abuse.

And, while I'm thinking of it, I'd like to know what 'the duration' means, specifically. IOW, if we're fighting a war on terror or Islamic fascism or whatever, I want to know what constitutes the end-state of that war. Because while I'm comfortable with UECs being detained until the war is over, I'm not comfortable with that anyone can define what that means.

I'm also not clear, in particular, what these tribunals can or must prosecute. Here's what the AP summary says.
WHOM THE MILITARY CAN PROSECUTE:

> The military gets to decide whom it prosecutes and is not required to bring charges against every prisoner. The military has some 14,000 detainees in custody.

> So far, the military has identified 10 individuals out of the estimated 450 prisoners at Guantanamo Bay prison in Cuba who are people for whom the military believes it has enough evidence for successful prosecution. President Bush is expected to bring charges against 14 others recently transferred to the military prison from CIA custody.

> The military does not have plans yet to prosecute the remaining prisoners, most of whom are held in Iraq and Afghanistan.
I assume, and I'm not sure, that what would be considered for prosecution are "war crimes". If so and given the ratio of individuals at Gitmo being considered for prosecution vs. those being held, I would guess the rest would hold more of a POW status than anything. I.e. UECs being held for the "duration" as we do enemy POWs. And only those against which authorities have proof of war crimes would be prosecuted. Hmmm ... see Nuremberg.

AP also covers the rules for such a tribunal trial:
RULES FOR A MILITARY TRIAL:

> Each defendant selected for prosecution must be assigned a military defense counsel. The defendant could retain civilian counsel if the counsel is eligible to have access to classified information.

> Statements obtained by torture would not be admissible as evidence.

> Statements obtained using interrogation methods that violate a 2005 ban on "cruel, inhuman or degrading treatment" would be admissible as evidence if they were taken before the ban took effect and a judge found the statements were reliable and would serve the "interests of justice."

> The commission could determine the punishment, including death.

> A defendant would be allowed to examine and respond to any evidence given to a jury. If classified information were needed for prosecution, an unclassified summary would be provided.

> When the government wants to protect classified information and an unclassified substitute is not available, the government could decide to drop the charges. Under the laws of war, the president would not be required to release the combatant.

> Defendants would be barred from protesting their detention or treatment in civilian courts.
So, given the proper selection of civilian counsel, classified information would be allowed (a positive) and a jury trial would be allowed. Rules of evidence seem ok (other than the pre-2005 bit about evidence obtained by "cruel, inhuman or degrading treatment".).

Note the point which talks about the government refusing to release classified info due to security concerns. While they may drop "war crime" charges against the individual, that doesn't change his essential "POW" status. And, of course, the last point is again similar to that under which POWs are held. They have never had access to our courts.

Now we get to the last sticky wicket:
INTERROGATION TECHNIQUES:

> The president would not be allowed to authorize any interrogation technique that amounted to a war crime. These include torture, cruel or inhuman treatment, murder, mutilation or maiming, serious bodily injury, sexual abuse, taking hostages, rape and biological experiments. An extensive definition of each crime is provided.

> Proponents of the bill say abusive interrogation methods, including "waterboarding" —- or simulated drowning —- would amount to war crimes and are prohibited.
I agree with the final point. I'd also insist that this be exremely clear, in terms of what is and isn't allowed, so that there can be no question in the mind of interrogators where their limits are found. IOW, to use one of the few legal terms I know, there should be a "bright line" drawn concerning these techniques ... a very bright line.

James Rosen writes that most likely the law will end up in court. As I said, that's fine.

I think the arguments (not the hyperbole) from each side have some merit.

Lindsey Graham (R-SC) says:
"I think this could be 7-2" to uphold the new law, Graham said in an interview. "I think the court is going to find that the military commissions Congress has authorized are compliant with Common Article 3 of the Geneva Conventions, and that they afford due process of a civilized nation."

"Everything we've done is consistent with the law of armed conflict, and the detainees have more rights than any other enemy prisoners have had in any other war," Graham said.
My cursory review (non-legal to be sure) can't find fault with his particular statement given our past treatment of POWs and war criminals as I mentioned. I have no idea, however, how the SC would vote on the law.

As to other opinions out there, Jeremy Hafetz says:
The tribunals law "unconstitutionally suspends the writ of habeas corpus, and it denies any noncitizen held anywhere in the world his fundamental right to contest the lawfulness of his detention by the United States," said Jonathan Hafetz, who represents a detainee as associate counsel at New York University's Brennan Center for Justice.

"It defines 'enemy combatant' in overly broad terms that exceed what the Constitution allows," Hafetz said.

Habeas corpus affords those accused of crimes access to court to respond to the charges against them. The Founding Fathers wrote it into the Constitution, preceding the Bill of Rights, which was added later as its first 10 amendments.
While I agree for the need to be more exact on what constitutes a UEC, as I've pointed out, I'm not sure he has a very powerful argument for "habeas corpus".

Another opinion:
Randy Barnett, a constitutional law professor at Georgetown University, expressed confidence that the new law will pass Supreme Court muster, however.

"Most of the Supreme Court's focus [in post-Sept. 11 detainee cases] has been about the failure of the Bush administration to get congressional authorization for what it was doing," Barnett said. "Now the administration has such authorization. The odds of the Supreme Court saying that what Congress did was unconstitutional are extremely remote."
I think, in essence, that's Graham's argument as well.

We'll see. Regardless, I agree with those saying it will end up in the Supreme Court:
According to legal scholars, much of the coming struggle over the tribunals law will focus on its stripping habeas rights from about 400 terrorism suspects, most of them detained at the U.S. military base in Guantanamo Bay, Cuba.

The high court probably also will examine the law's definition of "enemy combatant" and explore whether it meets the U.S. government's obligations under the Geneva Conventions.
And tentatively, I'm agreeing with Graham that, while the SC may require some minor tweaks (such as a more explicit definition of UECs), for the most part, the SC will uphold the law.
 
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For all the hype and alarmism regarding the Military Commissions Act, it seems pretty reasonable to me.

I asked this very question the other day...

http://www.qando.net/details.aspx?Entry=4782
OK, is it just me, or does this not seem a reasonable definition of "unlawful enemy combatant"???

http://www.loc.gov/rr/frd/Military_Law/pdf/S-3930_passed.pdf

‘‘(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.
And maybe I’m just not reading this right, but the military commissions setup are limited to alien unlawful enemy comatants. Not, anyone the President decides to throw down a hole.
‘‘(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
 
Written By: Keith_Indy
URL: http://
And maybe I’m just not reading this right, but the military commissions setup are limited to alien unlawful enemy combatants. Not, anyone the President decides to throw down a hole.
This is an important part, as far as I’m concerned. And the hyperbole criticizing the law twists this beyond recognition, asserting it means anyone, to include US citizens, can be incarcerated and denied habeas corpus at will.

I’ve simply not found anything in my reading to support that assertion.
 
Written By: McQ
URL: http://www.qando.net/blog
Well, to argue the other side, but what about Padillia?

Answer: Didn’t the courts side with him already?

And this law wouldn’t apply in his case, since he is an American citizen and not an alien, let alone an alien unlawful enemy combatant.
 
Written By: Keith_Indy
URL: http://
I started wondering the same thing when I actually read the bill itself. All three mentions of habeas in the bill seem to be pretty specific to non-US citizens. What if the government tried to apply it to a US citizen? That’s pretty clearly against both the constitution and the bill’s intent, but would the bill’s denial of jurisdiction in §950j still preclude such a challenge anyway? I suspect that the courts would say no, the administration would say yes, congress would mumble nothing useful either way, and we’d be at the same stalemate as always.

Citizens’ habeas rights were already under threat, but no more so after this bill than before, and there are plenty of other things wrong with the bill. Maybe we should focus on the repudiation of treaties we have signed and ratified, making us a nation of oathbreakers. Or the attempt to provide retroactive immunity for war crimes. If ex post facto laws are prohibited with respect to guilt, why not with respect to innocence/immunity? A highly questionable claim that this bill applies to US citizens seems like the least of the objections that can be raised.
 
Written By: Platypus
URL: http://pl.atyp.us
And maybe I’m just not reading this right, but the military commissions setup are limited to alien unlawful enemy combatants. Not, anyone the President decides to throw down a hole.

I’ve been actively remonstrating against this bill, but if it didn’t apply to US citizens, it would drop far down my list of concerns. I’d still be concerned about indefinite detention without trial for aliens on military authorization - see McQ’s paragraph about why this war, unlike previous wars, as defined so far leads to no expectation of an *end state* in the next five decades - simply because if we’re detaining someone, there ought to be a reason why we suspect them, and if it’s a good reason, they ought to be convictable by a trial, and if there is no good reason, then it shouldn’t be done.

But I wouldn’t be *alarmed* about the bill.

But I don’t understand where this consensus is coming from. Let’s go back to Keith’s blockquote:
‘‘(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
Does anyone see the word "alien" in this blockquote? In the text of the law? No. Why? Because it’s not there. In other words, there is no language in this bill anywhere that limits unlawful combatants to non-US citizens. unlawful enemy combatant is... what the definition says.


Keith’s second block quote uses the word "alien" - but that’s for describing who is tried by the military tribunals. Not who can be detained as the combatant. That key word "alien" is missing from the first definition.

So what happens to US citizen "unlawful enemy combatants"?

Please see this analysis from findlaw.com -

http://writ.news.findlaw.com/mariner/20061009.html


Excerpt:
The material support element of the first prong of the definition - which covers people who have purposefully and materially supported hostilities - exceeds the traditionally-accepted legal definition of combatant. Under international humanitarian law - the laws of war - combatants are people who directly participate in hostilities. People who merely support hostilities - such as cafeteria workers at a military base - are considered civilians. Unlike combatants, they cannot be deliberately targeted for attack.

The first prong of the bill’s definition is unjustifiably broad. But the second prong of the definition is far worse. It appears to delegate to the President or Secretary of Defense unrestricted power to deem anyone an unlawful enemy combatant. All it requires is that a "competent tribunal" like a Combatant Status Review Tribunal (CSRT) make the determination. (CSRTs are the administrative boards that review detentions at Guantanamo.) The bill itself says nothing about the substance of the criteria that the tribunal should apply.


Next:

The definition as a whole is thus so radically overbroad that one is tempted to attribute its breadth to a drafting error (perhaps it was originally written as a two-part test, not two independent prongs). At any rate, as written, the provision should be struck down as a blatantly unconstitutional delegation of power. And note, in assessing the provision’s scope, that the definition of "unlawful enemy combatant" is not limited to aliens (even though U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions


Anyone know? The bill sure doesn’t make it clear.

When you combine it with this:

http://writ.lp.findlaw.com/dorf/20061011.html#Scene_1

To be sure, if the government provides someone declared to be an enemy combatant with a combatant status review tribunal (CSRT), then the DTA authorizes judicial review of that determination. And the MCA does amend the DTA for the better in one important respect: Whereas the DTA only authorized civilian judicial review of CSRT determinations for detainees at Guantanamo, under the MCA, a person held by the United States pursuant to a CSRT anywhere in the world can appeal the CSRT’s ruling to a civilian federal court. But, there is no statutory requirement that the government ever utilize a CSRT-and absent a CSRT ruling, there is no access to civilian court.

Thus, under the terms of the DTA as amended by the MCA, there would be no access to a civilian court whatsoever, even if the detainee were held within the United States, so long as the government determined that he or she were an unlawful enemy combatant by some means other than using a CSRT. And at least to that extent, the MCA should be judged unconstitutional as a de facto suspension of the privilege of the writ of habeas corpus. Article I, Section 9 permits Congress to suspend the privilege of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." Public safety may require that the writ be suspended in an active war zone where courts cannot function. But the DTA and MCA apply everywhere.

You come up with a logical path wherein the bill permits indefinite detention of US citizens. They can’t be tried by the CSRT. But the bill at no point guarantees a CSRT, and there are no alternative procedures specified.

Best-faith assessment: it’s not clear enough and needs to be modified. Worst-faith assessment: US-citizen-indefinite detention loophole of truck size.

I’m glad this was posted: I learned a little bit rebutting it.

 
Written By: glasnost
URL: http://
...there ought to be a reason why we suspect them, and if it’s a good reason, they ought to be convictable by a trial, and if there is no good reason, then it shouldn’t be done.
Not if they’re an enemy combatant caught in the field. That word is key. That means they took up arms against the US and by that action have become a similar to an enemy soldier. We need no other reason to hold an enemy soldier as a POW than he’s an enemy soldier (from a nation engaged in hostilities against the US).

In the case of UECs they, not any nation, must first engage in overt hostilities before they can be taken.

The only exception to that is probably those who "purposefully and materially supported hostilities against the United States" or are accused of committing war crimes. It would seen they are the only detainees who necessarily should be given trials.

Thus ...
The material support element of the first prong of the definition - which covers people who have purposefully and materially supported hostilities - exceeds the traditionally-accepted legal definition of combatant.
... isn’t what they’re talking about when they say UEC. That’s why the word "or" is in there. It defines a different type of enemy and one, I assume, for which the tribunal is specifically designed.
 
Written By: McQ
URL: http://www.qando.net/blog
glasnot - considering this bill is specifically to define what Military Commissions are, and who may be tried under them, I think that the bill does what it says it does. Arguing that it doesn’t define what to do with Americans who are unlawful ememy combatants, doesn’t have anything to do with this bill.

And I was wrong, it wasn’t the Paddila case I was thinking of, it was the Hamdi case...

And if this is true, there is no need to codify what happens to US citizen "unlawful enemy combatants." Especially not in a bill to deal with alien UECs.

http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld#The_Court.27s_opinions
Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

Justice O’Connor wrote a plurality opinion representing the Court’s judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O’Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. This required notice of the charges and an opportunity to be heard, though due to the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O’Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O’Connor did not write at length on Hamdi’s right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O’Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality’s judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality’s ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

Justice Antonin Scalia’s dissent, joined by Justice John Paul Stevens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion"), which hadn’t happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi’s detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit’s ruling, based on his view of the important security interests at stake and the President’s broad war-making powers.
 
Written By: Keith_Indy
URL: http://
An interesting article with the history of "Unlawful enemy combatants." And you thought it was a term President Bush invented...

http://www.washtimes.com/op-ed/20060710-082101-3448r.htm
To date, however, the legal basis of this decision has been longstanding U.S. practice (actually dating to the war for independence), customary international law, various treaties (including the 1949 Geneva Conventions) and a series of Supreme Court cases mostly from the World War II era. There is no federal statute that defines comprehensively unlawful combatants or their legal rights and liabilities. Congress can now enact such provisions, and, in the process, make clear to the world why these individuals cannot and should not be treated as honorable prisoners of war.
In the past, of course, this would have been unnecessary, and this explains why Congress never before formally dealt with this issue. Before the 1970s, the category of unlawful enemy combatant was widely understood and accepted as a critical part of the laws of war. Such individuals do not fight on behalf of sovereign states, have no regular and transparent command structure, do not wear uniforms, do not carry their arms openly and do not obey the laws of war. As a result, they present a particularly dangerous threat to civil society in general and the civilian population in particular.
To deter this type of illegitimate, asymmetric warfare, unlawful combatants have historically been denied the rights of prisoners of war and could be severely punished after the most abbreviated of proceedings. By the mid-20th century, custom entitled them to certain minimum due process protections — notice of the charges, an opportunity to make a defense (not necessarily to a lawyer) and to a hearing, but little else.
In the 1970s, however, "progressive" activists (including the International Committee of the Red Cross) attempted to achieve a new lawful or "privileged" status for unlawful combatants. Motivations varied from open sympathy with the national liberation guerrilla forces who would most benefit from a change in the laws to a quixotic hope that — having obtained a fundamental benefit from the laws of war — unlawful combatants would themselves begin to comply. Of course, this did not happen, and irregular warfare has simply become ever more savage in the years since.
Fortunately for the United States, the Reagan administration definitively rejected these efforts — codified in Protocol I Additional to the 1949 Geneva Conventions. Congress can now reaffirm the legal rules applicable to unlawful combatants, defining in detail how individuals who make war without legal authority and who don’t play by the rules should be treated.
 
Written By: Keith_Indy
URL: http://
Keith’s second block quote uses the word "alien" - but that’s for describing who is tried by the military tribunals. Not who can be detained as the combatant. That key word "alien" is missing from the first definition.
So what happens to US citizen "unlawful enemy combatants"?
‘‘SUBCHAPTER I—GENERAL PROVISIONS
All quotes below from the above sub-chapter.
‘‘§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
‘‘§ 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.


‘‘In this chapter: ‘‘(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.
(FROM § 948a. Definitions)
‘‘(3) ALIEN.—The term ‘alien’ means a person who is not
a citizen of the United States.

Now, stop worrying about American citizens being labeled as Unlawful enemy combatants and tried.

It specifies who can be tried and specifies what Aliens are.
The reason they GIVE definitions is precisely to abort silly statements purporting to demonstrate American Citizens can be tried by military tribunals under this codex.

They might be tried as Lawful combatants though if they could be construed to meet the Lawful Enemy Combatant clause. They’d have had to renounce their citizenship to be sure of that option I would think. Saying it on the spot probably wouldn’t help. Then again, we don’t try people for Treason very often.

‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful enemy combatant’ means a person who is— ‘‘(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 law 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.


 
Written By: looker
URL: http://
Now, stop worrying about American citizens being labeled as Unlawful enemy combatants and tried.

It specifies who can be tried and specifies what Aliens are.
The reason they GIVE definitions is precisely to abort silly statements purporting to demonstrate American Citizens can be tried by military tribunals under this codex.



You’re missing the point, looker. (surprise!)
‘‘(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
Procedures governing using military commissions to try alien unlawful enemy combatants. So all that means is that US citizens won’t be given trials under these conditions. That does *not* mean that US citizens can’t be detained as unlawful combatants. If US citizens were excluded from being detained as enemy combatants, then some reference to "non-US-citizens" or "ONLY non-US-citizens" would have been included in this definition:
In this chapter: ‘‘(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 definition of unlawful enemy combatant says "a person". Not "an alien" or "a non-US-citizen". All the bill’s language does in the first quote is specify how aliens detained indefinitely may be tried *if and when* (another problem with the bill) the SecDef chooses to put them on trial.

Think like a lawyer. This is a tractor-trailer-sized loophole - best faith. Worst faith, it’s an attempt to deliberately keep the option of detaining US citizens as combatants open.

Now, the Hamdan decision suggests, (thanks Keith_Indy) that this loophole might not stand up to the Supreme Court -
if it ever gets to it.

Since everyone agrees that US citizens, especially on US soil, should not be detained indefinitely as unlawful combatants, there should be no harm & no foul done to pass a revision striking "person" and inserting "non-US-citizen" in 1.A.I.





 
Written By: glasnost
URL: http://
Not if they’re an enemy combatant caught in the field. That word is key. That means they took up arms against the US and by that action have become a similar to an enemy soldier. We need no other reason to hold an enemy soldier as a POW than he’s an enemy soldier (from a nation engaged in hostilities against the US).

I don’t have a problem with that, at least as a stop-gap measure. In the long run, since the war against Al_Quieda is probably permanent, there should be a trial and punishment, rather than permanent limbo. Heck, you can make "taking up arms against the US" carry an automatic life sentence, if you want. But if we’re going to be holding them until they die, there should be a formal guilty/innocent determination process by neutral parties.
The only exception to that is probably those who "purposefully and materially supported hostilities against the United States" or are accused of committing war crimes. It would seen they are the only detainees who necessarily should be given trials.
Well, one of the problems with this bill is that, as written, trials are optional for everyone. You don’t have to take my word for it, see what you dig up yourself. There should be a time limit on how long to hold even foreign citizens without some sort of status review. For efficiency’s sake if nothing else.

 
Written By: glasnost
URL: http://
Well, one of the problems with this bill is that, as written, trials are optional for everyone.
I don’t think that’s the point at all. I think that it is up to the tribunals to determine who should be held for trial. Otherwise they hold "detainee" status.
But if we’re going to be holding them until they die, there should be a formal guilty/innocent determination process by neutral parties.
Guilty or innocent of what? Again, the POW analogy. POWs aren’t guility or innocent of anything other than being a soldier of a combatant nation that we’ve captured. We don’t give them a trial.
There should be a time limit on how long to hold even foreign citizens without some sort of status review.
Well that goes to my point about someone telling us what the end-state of this conflict looks like. While I understand and am sympathetic to your point, there’s never been a time limit set on holding POWs except the ending of hostilites.

What is comparable in this war? How do we know when, and if, that’s happened (since there most likely won’t be a formal surrender, etc)?
 
Written By: McQ
URL: http://www.qando.net/blog
An Act
To authorize trial by military commission for violations of the law of war, and for other purposes.
Get that? the ACT is for military commissions to try violations of the law of war and other purposes - see, written twice, so you get it.
The definition of unlawful enemy combatant says "a person". Not "an alien" or "a non-US-citizen". All the bill’s language does in the first quote is specify how aliens detained indefinitely may be tried *if and when* (another problem with the bill) the SecDef chooses to put them on trial.
An act - for military commissions glasnost - not an act for any old sh*t we feel like on US citizens



Within the body of that act...for MILITARY COMMISSIONS - who are they entitled to incarcerate and try?

PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants
engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
Under the habeas corpus modifications (section 7)
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...
See anything in there about US Citizens having their right to a writ of habeas corpus removed? No? Gee, no surprise, it’s not in there. Also, note it doesn’t even say - "unlawful enemy combatant", it simply says combatant - meaning either lawful, or unlawful.
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination
See anything in there about US citizens having their right to a writ of habeas corpus removed? NO? Wow, not there again. But Aliens is. And the same applies, enemy combatant, either lawful or unlawful.

All of these modifications are applied under Military commissions - there’s nothing in here that says - oh, by the way, we get to use this clause:
‘‘(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. ‘‘(B) CO-BELLIGERENT.—In this paragraph, the term ‘co-
belligerent’, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.
‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful enemy combatant’ means a person who is— ‘‘(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 law 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.
any old way we want, to round up any old US citizen we want,.

It doesn’t say we can suspend Habeas Corpus for AMERICAN CITIZENS, it specifically says Aliens. Which is defined in definitions as someone who isn’t a US citizen (be they unlawful, lawful, or confused combatants).

Now - on to your supposed point about
Since everyone agrees that US citizens, especially on US soil, should not be detained indefinitely as unlawful combatants, there should be no harm & no foul done to pass a revision striking "person" and inserting "non-US-citizen" in 1.A.I.
Well, no - I don’t agree that US citizens shouldn’t be possibly detained as unlawful combatants first off, since I think if they’re found supporting attacks on, or popping off at, US forces or other citzens they ought to be considered combatants, and since that’s treason, it’s unlawful.
But in any event, since the suspension of Habeas Corpus only extends to aliens, it’s not an issue, is it?

US Citizens (suspected traitors) are still entitled to their trial with evidence, under US law where maybe they’ll be found to be not traitors.

You’re working waaaaaaaaay to hard on some evil conspiracy to round Americans up, stick them in some dank hole and throw away the key without giving them their day in court.

Damn, you make it sound like Bush, Cheney and Rove came up with this in the middle of the night and signed it into law without anyone in Congress seeing it, but see, that can’t be the case because right there in LARGE FRIENDLY LETTERS at the beginning of the act it says -
One Hundred Ninth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday, the third day of January, two thousand and six
An Act
To authorize trial by military commission for violations of the law of war, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,.
 
Written By: looker
URL: http://
I truly do not understand the "oh, thank goodness, it only applies to aliens" responses to this Act. Can somebody tell me what the difference is between John Walker Lindh and David Hicks? Both were captured fighting for the Taliban in Afghanistan. Why is their citizenship significant in deciding how they should be tried?
 
Written By: Bitter
URL: http://qando.net/
Here’s a good synopsis from 2002 about "unlawful enemy combatants," and our options regarding them.

http://writ.news.findlaw.com/dorf/20020123.html
 
Written By: Keith_Indy
URL: http://
So, if US courts have no jurisdiction over legal enemy combatants not on US soil, then why would it have jurisdiction over illegal enemy comatants not on US soil??

http://en.wikipedia.org/wiki/Johnson_v._Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 (1950), was a lawsuit in which the U.S. Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison.

…Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments. …
 
Written By: Keith_Indy
URL: http://

 
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