"It is a rare occasion when a President can sign a bill he knows will save American lives. I have that privilege this morning. The Military Commissions Act of 2006 is one of the most important pieces of legislation in the War on Terror. ... And now, in memory of the victims of September the 11th, it is my honor to sign the Military Commissions Act of 2006 into law."
- President George W. Bush, 10/17/06
Ostensibly, expanding our government's abilities to fight terrorists is a good thing. However, some of the provisions of this new legislation raise some very serious questions. There is no doubt that the fight against legitimate terrorists would be enhanced and streamlined by this legislation. My concern is that while this legislation would facilitate the trying, convicting, and punishing of legitimate terrorists, the legislation's language leaves the door wide open for abuse of all manner of individuals, from those who find themselves unlucky enough to be in the wrong place at the wrong time to those who this, or a future administration, might find politically inconvenient or politically threatening.
But don't take my word for it, read the Military Commissions Act of 2006 (PDF) for yourself:
I found the following passages of the Act to be the most potentially troublesome:
''§ 948b. Military commissions generally
''(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—(1) The following
provisions of this title shall not apply to trial by military
commission under this chapter:
''(A) Section 810 (article 10 of the Uniform Code of Military
Justice), relating to speedy trial, including any rule of courtsmartial
relating to speedy trial.
So much for a right to a fair and speedy trial.
''§ 948r. Compulsory self-incrimination prohibited; treatment
of statements obtained by torture and other
''(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A
statement obtained by use of torture shall not be admissible in
a military commission under this chapter, except against a person
accused of torture as evidence that the statement was made.
So, in order to use a statement obtained by the use of torture, just accuse the defendant of torture. Easy enough! (Is it just me or does the statement in (b) read really oddly?)
''§ 949a. Rules
''(B) Evidence shall not be excluded from trial by military
commission on the grounds that the evidence was not seized
pursuant to a search warrant or other authorization.
No warrant, no problem. All searches and seizures are now reasonable, just declare the accused a suspected terrorist.
''(C) A statement of the accused that is otherwise admissible
shall not be excluded from trial by military commission on
grounds of alleged coercion or compulsory self-incrimination
so long as the evidence complies with the provisions of section
948r of this title.
Accuse the defendant of torture and then beat the statement out of him. It's all good.
''(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).
The disclosure of evidence under the preceding sentence is
subject to the requirements and limitations applicable to the
disclosure of classified information in section 949j(c) of this
Hearsay is in! Johnny here says you're a terrorist. Now prove him wrong. Oh, you can't prove Johnny wrong? – Well, off to prison with you! The burden of proof here is on the accused, not the accuser.
SEC. 7. HABEAS CORPUS MATTERS. (In case you're not familiar with the term "habeas corpus," here's a definition):
(a) IN GENERAL.—Section 2241 of title 28, United States Code,
is amended by striking both the subsection (e) added by section
1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
(e) added by added by section 1405(e)(1) of Public Law
109–163 (119 Stat. 3477) and inserting the following new subsection
''(e)(1) 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.
''(2) 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.''.
...or awaiting such determination. – Hell, you don't even have to qualify as an enemy combatant to spend the rest of your life in jail.
The Mahablog asks, "Why would any American citizen support the Military Commissions Act of 2006?" A good question, indeed! Marty Lederman at Balkinization thinks he has an answer, albeit a sarcastic one, "...this (law) is entirely pellucid and unambiguous, and doesn't raise any constitutional questions."
Representing the Right side of the political spectrum, the conservative Confederate Yankee makes a clever mockery of those who express reservations about the new law. But, read the comment by Peter in Hastings (I think his is the sixth one), it very succinctly outlines exactly what is wrong with this new law.
I expect that at some point, the ACLU or some other organization or individual will challenge The Military Commissions Act of 2006. However, given our radically partisan
Republican Supreme Court, I wouldn't put any money on the challengers. One of my biggest worries is that the new paradigms ushered in by this legislation (the admission of hearsay, the suspension of habeas corpus, etc.) might become the new normal, as they obliterate centuries of precedent.
Until now, in America, individuals were assumed to be innocent until proven guilty. Now, mere accusation yields the same results for defendants as guilty verdicts. While the new law singles out aliens determined to be enemy combatants, the next question is, "How long until these new standards of determining guilt are applied to the rest of us?"