Centerfield

It's not just the left that's concerned.

Posted by: Blue Jean at September 28, 2006 09:06 AM

Both technically and non-technically: Section 9 is a prohibition on Congress, not the executive branch, and the habeas corpus provision applies to U.S. citizens "in country" during peacetime, not to enemy captured on the field of battle during war. I'm sure he'd love to have our soldiers required to read enemy combatants both lawful and unlawful their Miranda rights before being allowed to take them into custody as well.

Duncan Black never lets the facts stand in the way of a good pompous tantrum.

Posted by: Tully at September 28, 2006 09:11 AM

I'm sure he'd love to have our soldiers required to read enemy combatants both lawful and unlawful their Miranda rights before being allowed to take them into custody as well.

Just to clarify -- you meant that as a rhetorical caricature, and you don't literally believe that Duncan Black (or 99% of other liberals) want enemy combatants read Miranda rights by our soldiers, right?

Posted by: Oberon at September 28, 2006 09:44 AM

This might be dumb question, but what prevents any one of us from being detained as a suspected enemy combatant? What I've read is that no court has jurisdiction over anyone either determined to be, or in the process of being determined to be, an enemy combatant. Maybe I should do more reading, but my understanding is that the executive branch has the sole authority to make such a determination. Does that then mean that the president can lock me up indefinitely, and that I have no recourse provided that he had determined or is in the process of determining that I am an enemy combatant? I have a hard time believing that, but that's my "regular guy" impression at this point, and it probably is for many others. Help me out here, fruitcakes. (And help out the guy sitting next to me a the corner bar when this comes up.)

Posted by: WHQ at September 28, 2006 09:51 AM

And what about everyone who just happened to pass through Afghanistan/Pakistan when a bounty hunter was sweeping up bodies to turn over to our forces for pay?

Posted by: Scott Smith at September 28, 2006 09:54 AM

Civil War = rebelion

People who cite Lincoln's repeal of habeas corpus should remember this.

Global threat of muslim extremism is not an invasion (yet, anyway) and not a rebelion.

It's just a bunch of cowards pissing their pants and overreacting.

Posted by: ME at September 28, 2006 11:06 AM

Just to clarify -- you meant that as a rhetorical caricature, and you don't literally believe that Duncan Black (or 99% of other liberals) want enemy combatants read Miranda rights by our soldiers, right?

Yes. Though Black does an excellent job of caricaturizing himself without any help from me, and requiring Miranda is the completely predictable and logical extension of demanding that the criminal constitutional rights of U.S. citizens be extended to foreign unlawful combatants captured in the field of battle and detained on foreign soil.

This might be dumb question, but what prevents any one of us from being detained as a suspected enemy combatant?

Location of capture and US citizenship. The executive detention order of 11/13/2001 specifically applies to non-citizens only. Atrios' hysteria is disingenuous. The bill currently being debated involves ONLY non-U.S.-citizen unlawful combatants detained on foreign soil, and is a specific remedy allowed by the Supreme Court's Hamdan decision. Many (including me) think Hamdan was wrong in the first place, but in any case, the Supremes made it clear how it could in their opinion be done legally, and that's what the bill would do.

Ignore the chatter, and look for the facts and details. It's always more enlightening than wing rant.

Posted by: Tully at September 28, 2006 11:36 AM

Of course, if you have no access to the courts, actually demonstrating that you are a US citizen could be a bit of a challenge....

Posted by: wj at September 28, 2006 11:46 AM

I'm not aware of anyone who demands that "the criminal constitutional rights of U.S. citizens be extended to foreign unlawful combatants captured in the field of battle and detained on foreign soil."

Posted by: Oberon at September 28, 2006 11:58 AM

And the obvious, that I've pointed out before. Make it too tough to detain field captures of enemy combatants, severely limit their usefullness as detainees, and we won't have to worry about having any prisoners at all. The troops will simply go "scorched earth" and kill them on the battlefield, rather than risking their own lives to get a surrender or capture that's not only worthless, but dangerous and logistically expensive.

You'd still have some POW's from surrenders, but no one would try real hard to convince them to surrender. We already know with this enemy that there is NO reciprocity of treatment--captured US soldiers are killed out of hand.

Posted by: Tully at September 28, 2006 12:02 PM

I'm not aware of anyone who demands that "the criminal constitutional rights of U.S. citizens be extended to foreign unlawful combatants captured in the field of battle and detained on foreign soil."

Massive load of B(ovine) S(catology) there, Oberon. If Black's not objecting to the current bill, he's simply ranting, being completely nonsensical, being a total freakin' nutburger (which is IMHO quite possible). 'Cause that's the only thing remotely resembling what he's ranting about that's going on in Congress.

Do you have an alternate explanation? Has it somehow escpaed the notice of the entire nation that Congress is trying to limit habeas corpus in any other regard whatsoever?

Posted by: Tully at September 28, 2006 12:17 PM

If you don't want them read Miranda rights, Oberon, then which constitutional protections are you in favor of granting the terrorists and insurgents, and which do you believe we need not grant? And what is your principle distinction between the rights you are willing to grant and the rights you are unwilling to grant to those picked up by U.S. military forces in combat zones?

Posted by: PatHMV at September 28, 2006 12:34 PM

wj -- Yaser Hamdi managed to do it. Once he was identified as a U.S. citizen, he was transferred from Guantanamo to Virginia and then South Carolina, even though he was detained on a battlefield in Afghanistan. The Supreme Court ruled in Hamdi v. Rumsfeld that he was entitled to seek judicial review of his detention through habeas corpus, based on his U.S. citizenship.

Posted by: PatHMV at September 28, 2006 01:18 PM

Pat -- Hamdi did, indeed, manage to do it. But that was before the law now moving thru Congress. And, arguable, part of the reason for it.

If you are a citizen, you are not subject to it, and have access to the courts. If you are a non-citizen, you are and you don't. But if you are held as a non-citizen, but actually are a citizen, how do you get access to a court to prove it? Looks like a classic Catch-22.

Posted by: wj at September 28, 2006 01:34 PM

Not at all. You do exactly what Hamdi did: a "next friend" files a petition with the court on your behalf. The "no access to courts" means that the courts don't have legal authority to consider your case, not that you or those on your behalf can't physically file something with them asking them to consider it. The bill doesn't take away your right to file something with the court alleging that you are a citizen and therefore entitled to different treatment. The first thing they'll consider (and the only thing, if they rule against you) is whether you are or are not a citizen. If you are, then you are entitled to habeas, and the court will continue to process your case. I haven't seen any "jurisdiction stripping" provisions in the bill to prevent the court from ruling on a claim of citizenship.

Posted by: PatHMV at September 28, 2006 01:39 PM

Tully -- what's B.S. about it? Do you really think only possible options are (1) support Bush 100% or (2) grant citizenship to all terrorists? And habeas is not something invented by our Constitution. Just because Congress has the power to limit habeas does not that they should.

PatHMV -- I don't know how to answer. If someone is not protected by the Constitution, then they're not protected by the Constitution. It's not even a question of "rights" in my mind -- it's a question of setting up a system than handle the many challenges of the global war on terror. If you capture a guy in the act of shooting at U.S. troops or trying to suicide bomb a school bus, you've got a different challenge than if you capture an Iraqi because someone left an anonymous note that the guy's a terrorist.

If anything, I'd look to the Israeli model. They have liberal democracy but they're also dealing with the reality of day-to-day terrorism.

Posted by: Oberon at September 28, 2006 02:01 PM

> I'm sure he'd love to have our soldiers required to read enemy
> combatants both lawful and unlawful their Miranda rights before
> being allowed to take them into custody as well.

This is as much straw as Atrios' post. You know the issue is elsewhere.

> Make it too tough to detain field captures of enemy combatants,
> severely limit their usefullness as detainees, and we won't have to
> worry about having any prisoners at all.

Yeah, we keep hearing this. Let's take a closer look at it. The actual issues are the imprisoned hearing the evidence against them, and physical abuse of prisoners. The evidence question is about secrets, not convenience of soldiers taking prisoners.

Whether abusing prisoners produces positive results is at the very least a deeply controversial question (IMHO no), within the military and without. I don't believe for a second that most soldiers aren't professional enough to understand that controversy and be disciplined when ordered to, especially since this issue has been there in every war we've had since WWI, and yet we've had prisoners by the millions.

Posted by: Jon Kay at September 28, 2006 02:21 PM

WHQ: This might be dumb question, but what prevents any one of us from being detained as a suspected enemy combatant?

Tully: Location of capture and US citizenship...Atrios' hysteria is disingenuous. The bill currently being debated involves ONLY non-U.S.-citizen unlawful combatants detained on foreign soil...

Me: Actually, the current bill would allow the government to designate U.S. citizens on U.S soil as enemy combatants if they "purposefully and materially supported hostilities" against the U.S. (I'm not sure how far that language could stretch, but it would be rather weird if President Bush threw his father in the brig for doing a business deal with the wrong Saudi sheikh.)

Posted by: Oberon at September 28, 2006 02:32 PM

Follow on -- my previous comment above based on an opinion piece here. If that's wrong, let me know.

Posted by: Oberon at September 28, 2006 02:36 PM

Tully -- what's B.S. about it? Do you really think only possible options are (1) support Bush 100% or (2) grant citizenship to all terrorists?

Look! Up in the sky! Is it a bird? Is it a plane? No, it's UberStrawMan! Neither of those things have I stated, imputed, or implied, much less nominated as a false either/or dichotomy. They're your straw men, you sort 'em out.

I'm not aware of anyone who demands that "the criminal constitutional rights of U.S. citizens be extended to foreign unlawful combatants captured in the field of battle and detained on foreign soil."

I can name 48 U.S. Senators who did so today in a floor vote in the Senate, and 195 U.S. Representatives who did so yesterday in a floor vote in the House, in an amendment to the bill.

Said amendment would have extended habeas corpus privileges to non-citizen unlawful enemy combatants captured on the field of battle and held by US forces on foreign soil. Said privileges to be enforced by US domestic courts. Clear enough?

Actually, the current bill would allow the government to designate U.S. citizens on U.S soil as enemy combatants if they "purposefully and materially supported hostilities" against the U.S.

That's a flat-out lie, Oberon, 100% pure-D BS, and if you believe it I suggest you actually read the bill itself. Carefully. To wit, the bill applies to "Any alien unlawful enemy combatant" and in the definitions section the bill specifically states that "the term `alien' means a person who is not a citizen of the United States." Clear enough for you?

Posted by: Tully at September 28, 2006 02:41 PM

Oberon, IF that were true I could see why you would be concerned, but NO such language is in the version that passed the House yesterday, nor in the version that's under debate on the Senate floor. I have no idea where the author gets that "information," but it is NOT in the language of either bill as submitted.

Posted by: Tully at September 28, 2006 02:47 PM

To be clear--the language of the bills defining who they apply to is the exact smae in both versions, and both versions contain the definition of "alien" as I have quoted it, verbatim. The bills are Senate 3930 and House 6166. The shot-down amendments were as I described--attempts to bring alien unlawful enemy combatants under domestic court jurisdiction for purposes of habeas corpus.

Posted by: Tully at September 28, 2006 02:50 PM

WJ,

I believe your concern would be generaly addressed by Article 5 of the Geneva Convention (to which we are a signatory)

----
"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. "
----

Essentialy my reading of it is this, your picked up on the battlefield and there is some question as to your actual status (i.e. Are you correctly identified as a combatant? Do you fall under any of the catagories of persons protected under Article 4? etc) you are entitled to a hearing before a millitary tribunal to determine your status. Determination of nationality would, per se, be a part of that process.

Remember, the millitary tribunal isn't trying to determine guilt or innocence of any crime. It's simply trying to determine who you are, if you are a party to the conflict, and what your affiliation is. Furthermore, remember that people being detained as combatants aren't being detained as a punishment or because they are accused of a crime.... they are being detained so that they can not continue to take active part in the hostilities. The second hostilities are over, those people are no longer subject to millitary jurisidiction (thier supposed to be repatriated to thier home countries). If they've commited a crime then at that point they are subject to a criminal trial with civilian courts and full legal protections, etc.

We are kinda in a wierd place right now because we ARE really at war (just ask the soldiers being shot at over in Iraq and Afghanistan) but to most of America it doesn't FEEL like we are at war.... because WE aren't worried about watching the skies for Japanese bombers or the coasts for German subs.

We are also fighting an enemy that doesn't present an open government or hold any real territory to force into submission. Therefore it feels like an open-ended sort of war.... who knows, maybe it is?

Anyway, I don't remember who said it but I love this quote "America isn't at war, the millitary is at war, America is at the mall!"..... the problem is the rest of us are trying to impose rules that are appropriate for the mall on the people who are dodging REAL bullets.... that just isn't going to work (IMHO).

Posted by: cengel at September 28, 2006 03:15 PM

Oberon, if you want to base your demand that the aliens be given habeas on moral grounds, that's fine. I agree with you and others that there is good reason to be concerned with people turned over to the U.S. by bounty hunters in Afghanistan and Iraq, and I would have no objection to giving them some protections before a military tribunal, and probably sooner rather than later after they've been captured.

BUT your original post sure seemed to be based not on moral grounds but on constitutional grounds. You referred (only) to Atrios' post about the habeas corpus provision of the U.S. Constitution. You can understand how I would mistakenly conclude that you were arguing that the detainees had a constitutional right to habeas corpus.

Posted by: PatHMV at September 28, 2006 03:30 PM

Also, just to clarify the Padilla case. Padilla was arrested crossing an international border to reenter this country. To constantly claim (as the LA Times article cited by Oberon does) that he was arrested "on U.S. soil" is misleading. The government has always had much greater authority over border crossers, even citizens, at the point of border crossing. For example, under very long-standing Supreme Court precedents, it's perfectly permissible for Customs to search you and your bags, whether you consent or not and whether there is probable cause or not, without a warrant. The government has the power to decide whe comes into this country and who does not.

Posted by: PatHMV at September 28, 2006 03:34 PM

I can certainly understand confusion from anyone relying on Ackerman's op/ed. Ackerman's conflating the Padilla case with the current bill, making claims that just don't hold up.

Padilla's appeal to the Supremes was thrown out on technical grounds. The Padilla habeas case was rendered moot when he was indicted last year.

Posted by: Tully at September 28, 2006 03:56 PM

PatHMV -- my original post was kind of a joke. The constitution says habeas can suspended during an "invasion", which probably meant only invasion OF the U.S., not an invasion BY the U.S. Where's an Originalist when I need one?

Posted by: Oberon at September 28, 2006 04:06 PM

Jean--looking over Sullivan's column, he's pretty hysterical and off-fact as well. He springboards off of a previous post which itself refers to a WaPo article that materially misstates the facts of the bill's language. The bill applies to "alien unlawful combatants." That could conceivably be stretched to mean non-citizen aliens who are US residents, but it most specifically excludes US citizens. Yet Ackerman and Sullivan and that WaPo article claim it applies to citizens.

What? Partisans and the press lying or misrepresenting something? Nah, couldn't happen!

Regardless of which set of partisans such claims come out of, it pays to read the actual legislation. It's a shocking fact that partisans lie and misrepresent, and they lie and misrepresent the most as elections approach.

Posted by: Tully at September 28, 2006 04:07 PM

I can name 48 U.S. Senators who did so today in a floor vote in the Senate, and 195 U.S. Representatives who did so yesterday in a floor vote in the House, in an amendment to the bill.

You are so unbelievably full of B.S. today that I'm not even going to bother discussing further. Why not just call Democrats "terror-lovers"?

Posted by: Oberon at September 28, 2006 04:13 PM

Oberon, if the foreign combatants don't have the right to habeas to begin with, then nothing is being "suspended".

Posted by: PatHMV at September 28, 2006 04:22 PM

cengal,

I think the guy you quoted was Bill Maher. I agree, it's a great quote.

Tully,

Yes, conservatives are just as prone to hysteria as liberals, as we've seen over and over again; that's why I linked him. Sullivan seems aware that the torture bill doesn't apply to citizens now, but he fears that it will spread to citizens in the future as do I.

Do I believe terrorists deserve slow, excruiating deaths, from a whole new realm of pain and another galaxy of agony?

Of course.

Do I think that allowing torture will help fight terrorism?

No.

Aside from the moral and ethical questions, torture usually proves counter-productive, because the victim ends up saying what the torturer wants to hear, not what the actual truth is. Start relying on torture for intelligence work, and weakens the whole intelligence gathing structure by taking away time and attention for more reliable methods.

The US has won two world wars, the Spanish-American war, the Cold War, and innumberable skimishes without resorting to torture. We can win the war against terrorism without it too.

Posted by: Blue Jean at September 28, 2006 04:26 PM

The article I linked was outdated or wrong. The enemy combatant status would apply only to aliens, not U.S citizens. Still it's a bit disconcerting that my neighbor with a green card could get locked away.

Posted by: Oberon at September 28, 2006 04:30 PM

Jean, I read his post. I read the previous post he based it on. I read the article he based THAT post on. Andrew Sullivan said that the current bill would make American citizens subject to detention without habeas corpus. Period.

This is not just restricted to aliens or foreigners, but applies to U.S. citizens as well. It can happen anywhere in the U.S. at any time. We are all at potential risk. --Andrew Sullivan

And he's wrong, period. The source he cites is wrong, which I assume is the source of his error. He backtracks slightly in his follow-up post but does not correct that rather major factual error. (So is he going with "fake but accurate?" :-O )

Oberon, I said what I meant, I meant what I said, and the facts are the facts. I was most specific. 48 Senators and 195 Representatives voted for the amendment to extend constitutional habeas corpus privileges to alien unlawful combatants captured in battle and detained by US forces on foreign soil. And that's what I said. That's a fact, not an opinion. It's in the Congressional Record.*

Thank you for checking the factuality of your source. The closer we get to Election Day, the more unreliable the claims that will be made, the more important it becomes to not believe anything coming from biased sources without verification.

[*--ready for the curveball yet?]

Posted by: Tully at September 28, 2006 05:36 PM

this just in. I post this here because if terrorists actually attack US bases (or anywhere) with dirty bombs (two violations of the Geneva Convention), I seriously doubt we will be discussing what Constitutional rights our enemies have. It is always important to worry about trends which threaten our liberty, but as Pat and Tully have pointed out, present bills do not.

Blue Jean mentioned torture. I cannot fathom why harsh methods not be employed on people who hail martyrdom, wmd and religious hatred against Christians, Jews, Hindus, atheists, etc. To prevent further illegal acts I would not hesitate to use methods that stop short of murder and mindless abuse. Again, methods are not just black and white. Instead of making a clear line in the sand between lawful and unlawful aggression, many on the Left focus on the rights of our enemies instead of what we must do to defeat Jihadists. It seems such a conversation is black and white. The popularity of “24” certainly indicate Americans believe there are many exceptions to Constitutional civility when dealing with fanatical terrorists determined to inflict mass casualties.

Another example of this distorted conversation of black and white rails on about Iraq. The Left selectively ignores the situation before we invaded, despite Hillary Rosen on Hardball saying we have spent six years rewriting the past. The Democrats demanded sanctions then (see below link as to their effort to break sanctions) and opposes sanctions now against Iran, North Korea and Syria. Perhaps some may wish to view this . Ignore the partisan comments and consider the facts. Sorry to dump this here, but I think there is a connection and the thread here seemed heading for its end. I think evolution places survival above principle and enforcement an indispensable attribute of successful large-scale cooperation. I trust Pat, Tully and others would never condone violations of our Constitutional rights, nor support some mindless campaign to abuse and imprison “suspects" without any judical review or concern for international law and moral principle. Nor would I.

Sorry for the off-topic comments.

Posted by: Maxtrue at September 28, 2006 06:05 PM

Maxtrue wondered:
> I cannot fathom why harsh methods not be employed on people who hail martyrdom

1) Because it's wrong, and

2) Doesn't serve our interests.

We don't choose how to act because of how the terrorists act. We should choose to act as we choose because it keeps us free and prosperous.

We choose to invade terror-supporting states to make sure they can't do much to our happiness, but it's not just as a reaction; we didn't just go and kill people left and right in Afghanistan, much as the temptation was ever-present.

For example, which ones in custody are terrorists?

Posted by: Jon Kay at September 28, 2006 06:39 PM

(note: apologies, LONG POST warning, this post involves verbatim quotes from the legislation in question)

(note to the note: further apologies...the comment software italicized all blockquoted text, so my denotations with italics are all screwy...we'll have to make due)

The crux of this problem, as I see it, comes from the legal, technical language...

Points of worry/dispute:

1) Definition of "Unlawful Enemy Combatant"

Sec. 948a. Definitions

`In this chapter:

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

`(2) CLASSIFIED INFORMATION- The term `classified information' means the following:

`(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security.

`(B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

`(3) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means an individual 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.

`(4) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.

What in the world does that mean? Engaged in hostilities? I'm not running off screaming at this...but it strikes me that it's rather nebulous. Bear with me...

here's the next part that gets attention...the text on jurisdiction:

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. 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, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

`(b) Lawful Enemy Combatants- Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.

`(c) Punishments- A miliary commission under this chapter may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter, chapter 47 of this title, or the law of war.

Ok, fair enough... Lawful enemy combatants are covered by the Law of War.. this is a provision for UNLAWFUL, ALIEN combatants...

Next up...pretrial procedures and rules of evidence:

Sec. 948q. Charges and specifications

`(a) Charges and Specifications- Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state--

`(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and

`(2) that they are true in fact to the best of his knowledge and belief.

`(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 and specifications against him as soon as practicable.

`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.

Here's the first of your really contentious portions.... the last paragraphs just above.

It says, plainly, that evidence obtained by coercion (when the degree/extent/devices of coercion are in dispute) can be admitted if the judge thinks they are relevant and reliable.

This is similar to what judges do in courts everyday...but it allows a loophole where statements obtained by torturing a suspect can be admitted if "the totality of the circumstances renders it reliable and possessing sufficient probative value". I personally would rather there be a bit more clarity in this regard. The military judge in this case would have the final say on whether or not the evidence is reliable. I've honestly got no idea how many officers would consider a defendant's insistance that he "made it up to make them stop" a believable one.

`(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.

`Sec. 948s. Service of charges

`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 in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.

This one here is a good addition, IMO. It DOES put our values out there in plain language, for "alien, unlawful enemy combatants"...

NOW...trial rules..here we get into the sticky wicket:

I'll italicize what got my attention...

Sec. 949a. Rules

`(a) Procedures and Rules of Evidence- Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or inconsistent with this chapter. Except as otherwise provided in this chapter or chapter 47 of this title, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter.

`(b) Exceptions- (1) The Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability in trials by military commission under this chapter from the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.

`(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights:

Catch that? The SecDef may, at his discretion, eliminate one of the following trial rules... THIS is what gets people upset, as we appear to be saying "we're providing a trial with the standard rules...but the SecDef or his delegate may eliminate those rules"

`(A) To examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing.

`(B) To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title.

`(C) To the assistance of counsel.

`(D) To self-representation, if the accused knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4).

`(E) To the suppression of evidence that is not reliable or probative.

`(F) To the suppression of evidence the probative value of which is substantially outweighed by--

`(i) the danger of unfair prejudice, confusion of the issues, or misleading the members; or

`(ii) considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

`(3) In making exceptions in the applicability in trials by military commission under this chapter from the procedures and rules otherwise applicable in general courts-martial, the Secretary of Defense may provide the following:

`(A) Evidence seized outside the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or authorization.

`(B) 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.

`(C) Evidence shall be admitted as authentic so long as--

`(i) the military judge of the military commission determines that there is sufficient evidence that the evidence is what it is claimed to be; and

`(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.

`(D)(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 this clause is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(b) of this title.

`(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.

`(4)(A) The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (2)(D) shall conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission.

`(B) Failure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under paragraph (2)(D). In such case, the detailed defense counsel of the accused or an appropriately authorized civilian counsel shall perform the functions necessary for the defense.

`(c) Delegation of Authority to Prescribe Regulations- The Secretary of Defense may delegate the authority of the Secretary to prescribe regulations under this chapter.

The portion on "hearsay" evidence was another eyebrow-raiser...again, how do you establish reliability of hearsay evidence? There's a reason courts don't allow it...if someone had a conversation or overheard something, let the prosecuting body do their jobs and track that information down...this undermines the integrity of the entire process.

I must cut this a little short..but I'll provide one more and then a link to the library of congress bill page so you can read to YOUR heart's content...

SEC. 6. HABEAS CORPUS MATTERS.

(a) In General- Section 2241 of title 28, United States Code, is amended--

(1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and

(2) by adding at the end 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--

`(A) is currently in United States custody; and

`(B) 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 detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

THIS one gets people going, for sure...

The notion that we specifically deny the right to a writ of habeas corpus to anyone whose "enemy combatant" status has not been determined...

Essentially it means "we can hold you and there's nothing any court can to do make us explain ourselves until we 'make a decision' about your status."

I do have a problem with that....

I understand the intention, but I think it's wrong that they have the right to put someone in a hole and not tell anybody until they're damned good and ready.

If you read the other parts of the bill:

http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN3930: (note:if you get the "search expired page" just search for S.3930)

The proceedings can easily be kept secret by the military...there's no reason for them to not have a reasonable timeline (3 months? 6 months?) to present a detainee before a military commission and, AT LEAST, get a set of charges or provide a rationale for why the person needs to be held.

That's all I'm asking for...it horrifies me to hear of people being rounded up in other countries based on hearsay and then have them disappear into a black world of beatings and cruelty on our authority and never get a chance to see the light of day in even a secret court.

If we capture a person overseas, and the case can be made for them being a terrorist, I have no problem with them being sent to a military prison in a remote, secure location...

I also have no problem with death penalties for people who've committed acts of terrorism resulting in the death of innocent civilians...

The underlying principles that make us who we are is that anyone we prosecute has the chance to prove their innocence. I hate the notion that we're blowing it off in a fearful reaction to an act committed by 19 men with 12 box cutters.

Posted by: Patrick at September 29, 2006 12:31 PM

Patrick, a couple of points in response.

Catch that? The SecDef may, at his discretion, eliminate one of the following trial rules... THIS is what gets people upset, as we appear to be saying "we're providing a trial with the standard rules...but the SecDef or his delegate may eliminate those rules"

That's not correct. That language says that the SecDef may create exceptions to the general rules for courts martial (which apply to these commissions except where other provisions are set forth in this law). The "Notwithstanding" language says that, even under any exceptions the SecDef makes, the following minimum procedures MUST be followed, no exceptions.

As to hearsay, remember that there is a war on. It will NOT work, period, if, in order to detain these individuals, we must fly over, from Afghanistan, the other 3 guys in the IED factory to testify that yes, this guy was helping him make the IEDs. It's just not possible. Demanding full-blown criminal trial rights like this is, in essence, demanding that we not hold any detainees, because it is not logistically possible to do that.

As for habeas, foreign aliens do not necessarily have any constitutional habeas rights. And that provision you quote applies ONLY to "alien" unlawful combatants, not U.S. citizens.

This is a war, remember? It's not necessarily any sort of crime for an Iraqi to shoot at an American soldier, or place an IED trying to take out an American vehicle. That may indeed be a lawful act of resistance to occupation. Many of the individuals needing to be detained would be considered prisoners of war, but for the fact that they are not part of a sovereign army, fighting in uniform. Many are being detained because they were actively fighting American troops, not because they committed any particular "crime".

There is indeed a risk posed by the U.S. detaining individuals based mostly on the say-so of bounty hunters and other mercenaries in Iraq and Afghanistan. I think it would behoove the opposition to this bill to focus on those particular cases with a much greater risk of harm to innocents than to raise hysteria about how terribly "evil" and "unAmerican" this bill is to all the poor little detainees.

Posted by: PatHMV at September 29, 2006 01:41 PM

The notion that we specifically deny the right to a writ of habeas corpus to anyone whose "enemy combatant" status has not been determined...

Of course we do. And we've done it with field captures in every war we've ever fought. It's covered in the GC. Until combatant status has been determined, they must be treated as ordinary POW's. POW's do not have the right of habeas corpus, or any other real right to domestic criminal courts. We don't provide habeas corpus to enemy combatants--we hold them until peace, and then repatriate them. If they're lawful enemy combatants, they're POW's. If they're unlawful enemy combatants, they're subject to this bill. If their status has not been determined, they are to be treated as POW's until a "competent tribunal" has determined it. Note however GC4 Article 46. Those combatants who fail to be determined as lawful combatants can be treated as spies--and the laws of war are rather rough on spies. This bill provides much greater rights than the status of spy.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. [GC3 Article 5]

If they're not combatants, they fall under GC3 Article 3. If they're lawful combatants, they fall under Article 4. And the Conventions apply only to those who are Nationals of treaty nations. This bill applies only to combatants not covered under the Conventions, i.e., unlawful combatants. And they have to first be determined to be alien unlawful combatants by a competent tribunal.

Much of the parsing out of what simply isn't there in this bill is due to (or facilitated by, depending on the intent of the parser) selective citation out of context, and/or a failure to account for other coverages under law and treaty. This bill does not authorize the snatching of American citizens off of the streets and their holding incommunicado, which is what many (including Harry Reid) have alleged. It does authorize standardized treatment of combatants not otherwise covered under the GC's. The curveball I mentioned above is that anyone who voted for either the Specter Amendment OR the bill itself can be quite factually said to have voted to extend certain constitutional criminal rights to alien unlawful combatants, at least in part.

Some wanted them to receive more rights than others were willing to allow. They would throw away the tool because it isn't perfect, rather than improving the tool. And some don't want the tool to exist at all, which would be the extreme paths of either treating unlawful combatants as simple criminal suspects, or of simply making them completely fair game for everything.

Before this bill the only lines in dealing with such prisoners were drawn by assertion. Now some are being drawn by statute. And they're tighter than the ones that were previously drawn by assertion by the government. There is still some grey area available in the case of unlawful combatants who are US citizens and not aliens, such as Padilla. But the grey area just shrank enormously.

What Pat said, last para.

Posted by: Tully at September 29, 2006 02:39 PM

Jon,
I made clear I do not condone all forms of torture or abuse on terrorists (illegal combatants). Every politician I have heard admits of exceptions to the torture rule. Clinton, McCain, Hagel, Warner, Hillary, Schumer, Biden etc etc. If a terrorist were caught during an operation or having just planned one, what interrogator would not use some harsh methods to prevent the death of thousands of Americans? The present system allows for such methods to be used in the exceptional case and prosecute such behavior in relation to 1. The results and 2. If such an interrogator had reasonable fears to act in violation of the torture standard. We are talking about illegal combatants committing illegal grimes against humanity. Spies were once shot for much less. As the means to deliver mass casualties and dirty bombs (read the link) become more commonplace, we need to draw a line between legal combatant’s rights and those of murderous terrorists. I do not argue against first determining "status" , but that this is another issue. If I had someone in custody who had buried my girlfriend with the clock running, I would certainly try to beat the truth out of him. Wouldn't you? Wait for your attorney to get him in court? What jury would convict me? Knowing that a real terrorist had information which could prevent the killing of many could be shown in court to produce reasonable rage. These bastards are torturing and chopping our soldiers heads off. I do not say become like them. I am saying either we send them to a third party, or try our best to do more than just coax some information out of them. This does not make me part of the "torture them" crowd. I am actually very non-violent. I would try to scare the crap out of a terrorist and use whatever methods were available short of murder, disfigurement, castration etc. I would not tell them that we would be civil and treat them like legal combatants and give them rights covered by our laws.

A commander captures part of the team deploying a dirty bomb. Get him a lawyer or do what ever you could with the clock running before thousands are exposed to lethal radiation? This logic has gone for centuries, employed by hundreds of governments. It is not black and white. As I said, laws in America reflect the will of the people. 24 confirms that under exceptional situations extreme coercion is not an unreasonable response. Altruism demands it. Altruism seems to be the biological corner stone of morality and cooperation. We are talking about illegal combatants engaged in crimes against humanity.

I suppose the GC would apply to aliens for Mars as well? And when I capture spiders I release them into the wild. And whose morality? The Bible recommends behavior that seems horrendous by today’s standards. Well, if you overlook the actions of Fascists, Jihadists and psychopaths…..

Posted by: Maxtrue at September 29, 2006 07:23 PM

Stay out of that Old Testament! It'll make you go blind.

Remember, they're only covered by the act if they're alien combatants. Marvin the Martian is at risk, but peaceful aliens are safe. :-)

[insert additional illegal alien joke here...]

Posted by: Tully at September 30, 2006 01:29 AM

"This is a war, remember? "

it takes an act of congress to declare war, right?

could someone please provide a link to where we declared war?

Posted by: lurker at September 30, 2006 01:37 AM

Another lurker who doesn't know that a Congressional authorization to use military force IS a declaration of war for all legal and constitutional purposes, I guess.

So here's one "declaration of war" from Congress, the one from September 18, 2001. And here is the "declaration of war" against Iraq from October 16, 2002. Both were passed by Congress and signed into law, both fully and completely satisfy all requirements for legislative approval under Article I, Section 8, Clause 11 of the Constitution. They are "declarations of war" per Congress, which has the sole authority as to the form of such declarations, as affirmed by the Supreme Court in both theory and practice in case law going back two centuries, and thus being the established law of the United States.

Happy now, lurker? :-)

Posted by: Tully at September 30, 2006 10:50 AM

thank you, Tully... i was just askin'....sorry if i upset you.

Posted by: lurker at September 30, 2006 02:03 PM

If an innocent question, my apologies for any snark content. I've gotten real tired of the "no declaration/illegal war" wingrant, and it produces a conditioned patellar-reflexive response...

Posted by: Tully at September 30, 2006 03:10 PM

;-)

Posted by: lurker at September 30, 2006 11:17 PM

As some of you folk know, I've been out of commission with an L3 fracture. I had decided to avoid superficial treatment of this issue on TV and in Boston Globe coverage, and wait until I had a chance to review what my blogger buddies had come up with.

This turned out to be an extremely wise decision. This thread sorted it all out for me quite satisfactorily, without me getting confused or angry or anything.

Thanks to all you guys for making it easy.

Tully, you sir continue to be a bottomless not to mention invaluable fount of relevant primary source data. Which is about as high a compliment as I can grant. But dude, when do you sleep?

Posted by: bk at October 1, 2006 01:00 AM

But dude, when do you sleep?

Every night, midnight to 7. I have a FireWire port patch-corded from my skull to the cable internet modem. :-)

Posted by: Tully at October 1, 2006 01:22 PM