Military Commisions Act of 2006

Warning: material contained in this post may be detrimental to your state of denial.

I’ve just finished reading the final compromise version of Senate Bill 3930, the Military Commissions Act of 2006, which establishes military commissions for trial of “unlawful enemy combatants” under Chapter 47A of title 10 U.S.C. A close study of the bill reveals a power grab of astonishing proportions. To detail even the most important points would be an extensive task, but a few key concerns are presented here. Please take the time to read the legislation for yourself to verify these statements. A link is provided here.
http://thomas.loc.gov/cgi-bin/query/F?c109:2:./temp/~c109fZSPZH:e0:

(If it doesn’t work go to http://thomas.loc.gov/ and type “Military Commissions Act of 2006” into the text search box. Select the version enrolled as agreed to or passed by both House and Senate.)

The most prominent concern on a first reading of this legislation is the sheer magnitude of the powers given to the President and Secretary of Defense. They include:

Unlimited authority to arbitrarily determine whether any person is an unlawful enemy combatant … - Sec. 948a(1)(ii) and Sec. 948d( c)
Sole authority to convene military commissions … - Sec. 948h
Sole authority to limit the unprecedented blanket power of Chapter 47A military commissions to “adjudge any punishment not forbidden by this chapter…” - Sec. 948d(d)
Sole authority to prescribe all “procedures and rules of evidence … including elements and modes of proof, for cases triable by military commission…” as long as they are consistent with Chapter 47A U.S.C. - Sec. 949a
These are only a few of the powers reserved exclusively to the Executive branch under this legislation. Lest there should be any misunderstanding of the unlimited nature of the authority granted, SEC. 3 (950j) prohibits any court from hearing any challenge to the lawfulness of Chapter 47A military commissions generally, or to any of their proceedings, no exceptions. SEC.7 prohibits any court from hearing any action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of any alien who has been or may be determined to be an enemy combatant. The only exceptions to the Sec. 7 prohibition are the provisions of the Detainee Treatment Act of 2005 and the appeals process under this Act. In addition, the U.S. Court of Appeals for the District of Columbia (the only court which may hear appeals from Chapter 47A commissions,) may only consider whether the military commission followed its own rules and procedures, not questions of fact or evidence. - Sec. 950g

While the final version of this Act does prohibit torture and bans statements or confessions obtained by torture, it permits hearsay evidence and “coerced evidence” to be admitted at the discretion of the military judge. - Sec. 948r Combined with the limitations on the scope of review by the appellate court, this provision all but guarantees the conviction of any person the prosecution wants convicted.

But the most frightening aspect of this legislation is the apparently intentional failure to define the phrase “any person subject to this chapter …” as it occurs in Subchapter VII, Punitive Matters. While the stated purpose of the Act is to provide for the trial of “alien unlawful enemy combatants,” there are three clauses that call that purpose into question.

Sec. 948a - Definitions: Combatant Status Review Tribunals are not restricted by this Act to consideration of aliens.
Sec. 950q – Principals: In specifying persons punishable under this chapter, no mention is made of alien, national or citizenship status.
"Sec. 950v(b)(26) – WRONGFULLY AIDING THE ENEMY- Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.” (emphasis added)

It is difficult to understand how an alien could be guilty of “breach of an allegiance or duty to the United States,” which clearly indicates that American Citizens may indeed be subjected to trial by military commission. If that is the case, an examination of Sec. 950v suggests that any common criminal could potentially be charged with terrorism, thereby losing his constitutional rights. Which, of course, means that the bill is unconstitutional. Don't let it shock you.

All in all, the bill is dangerously vague even if applied only to alien combatants, and could easily be interpreted to include foreigners engaged in the defense of their own country against the U.S. or its allies. While the injustice of such an interpretation is evident, it is worth noting that when this administration prematurely declared victory in Iraq, they endeavored to cover up their mistake by labeling as terrorists the indigenous Iraqi insurgency rather than admit that the demise of the Hussein regime was not equivalent to the restoration of peace. I make no objection to the label as applied to the Islamic jihadists who have selected Iraq as a battleground against the west, but a native Iraqi engaging in guerilla warfare against the invaders of his homeland hardly deserves to be accused of terrorism, regardless of the good intentions of the invading forces. I mention this only to highlight the fact that this law, through its extreme lack of clarity, lends a color of legality to such unjust sophistry.

The bottom line: get ready for the Brave New World, coming soon to a city near you. But remember:

“He that sitteth in the heavens shall laugh.”