Military Commisions and Habeas Corpus

Wow, where to start. This VERY LONG piece was sparked by the recent exchange I had with MysaNal on her Live Journal. It made me actually READ the legislation that the Congress passed last week. So, if you're on board for the long haul, here we go!

Let’s begin by defining our terms-

From Senate Bill 3930-

`(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.

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

Now, what does it take for a person (citizen or alien) to be declared an Unlawful Enemy Combatant (UEC)? Generally, that determination is made by a Combatant Status Review Tribunal (CSRT), and such is necessary for a determination of UEC status dispositive-

Sec. 948d. Jurisdiction of military commissions
(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

(a note on what dispositive means, since I wasn’t sure- In law, a dispositive motion is a motion seeking a court order entirely disposing of one or more claims in favor of the moving party without need for further court proceedings. "To dispose" of a claim means to decide the claim in favor of one or another party. )

In other words, for a person to be considered a UEC, a CSRT must have reviewed the information and determined that he meets the criteria as defined above.

These military commissions are based on the procedures used for military court marshals. This whole section is added to the US Code, in the section that is the Uniform Code of Military Justice (UCMJ). It would go in the UCMJ here at the end. This puts it in its proper perspective.

Sec. 948b. Military commissions generally
(c) Construction of Provisions- The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.

Now, while these commissions are duly constituted courts according to the Geneva Convention-

Sec. 948b
(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.—
A military commission established under this chapter is a regularly
constituted court, affording all the necessary ‘judicial guarantees
which are recognized as indispensable by civilized peoples’ for purposes
of common Article 3 of the Geneva Conventions.

Here’s the Geneva Convention mentioned-

http://www.icrc.org/ihl.nsf/WebART/375-590006?OpenDocument

with all the guarantees implied by the convention, an alien UEC may not invoke other Geneva convention rights-

Sec. 948b
(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF
RIGHTS.—No alien unlawful enemy combatant subject to trial by
military commission under this chapter may invoke the Geneva
Conventions as a source of rights.

That may sound harsh, why should alien UEC not be able to claim the Geneva Conventions? Well, it’s because THEY CHOSE to give up those protections by not following the Geneva Conventions to begin with!

The GC define POWs as-

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument

Back to the Senate bill, this part is important-

`Sec. 948c. Persons subject to military commissions
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

Emphasis mine. While the earlier definition of UEC speaks generally of a person who commits those acts, from here on in we are talking SPECIFICALLY about alien UEC. That’s important to point out to those in the paranoid Left who fear being ‘disappeared’ without any recourse. They must have stopped reading after the definitions to misunderstand so.

From there it goes on to talk about the jurisdiction of military commissions, and how they do NOT apply to Lawful Enemy Combatants and ends with this section-

‘‘§ 948e. Annual report to congressional committees
(a) ANNUAL REPORT REQUIRED.—Not later than December 31
each year, the Secretary of Defense shall submit to the Committees
on Armed Services of the Senate and the House of Representatives
a report on any trials conducted by military commissions under
this chapter during such year.
(b) FORM.—Each report under this section shall be submitted
in unclassified form, but may include a classified annex.

So there IS Congressional oversight here. Since this information is REQUIRED to be unclassified, we can all check and see how many trials have taken place. Using that information, I have not doubt that our journalists and even average Joes will be able to keep up with what’s going on with the UEC detainees.

The next several sections of the bill detail how military commissions will operate, and are pretty straightforward, so I won’t go into them here. Keep in mind though, we are STILL talking about alien UEC here, NOT US citizens.

After a verdict is reached, the following happens-

Ԥ 950b. Review by the convening authority
(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—
The findings and sentence of a military commission under
this chapter shall be reported in writing promptly to the convening
authority after the announcement of the sentence.

(c) ACTION BY CONVENING AUTHORITY.—(1) The authority
under this subsection to modify the findings and sentence of a
military commission under this chapter is a matter of the sole
discretion and prerogative of the convening authority.


‘‘§ 950c. Appellate referral; waiver or withdrawal of appeal
(a) AUTOMATIC REFERRAL FOR APPELLATE REVIEW.—Except as
provided under subsection (b), in each case in which the final
decision of a military commission (as approved by the convening
authority) includes a finding of guilty, the convening authority
shall refer the case to the Court of Military Commission Review.
Any such referral shall be made in accordance with procedures
prescribed under regulations of the Secretary.

So, an alien UEC goes before a Military commission. The findings and sentence are then reported to the convening authority who has the power to approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission. The convening authority may also order a proceeding in revision or a rehearing. Next you have the AUTOMATIC appellate referral for review.

Wow, 950v. Crimes triable by military commissions details the litany of crimes and offenses that a military commission covers. The list is HUGE but very specific. You can find it on pages 26-31 in the .pdf linked at the end.

At the very end of this section is another accountability measure-

‘‘47A. Military Commissions ................................................................ 948a’’.
(b) SUBMITTAL OF PROCEDURES TO CONGRESS.—Not later than
90 days after the date of the enactment of this Act, the Secretary
of Defense shall submit to the Committees on Armed Services
of the Senate and the House of Representatives a report setting
forth the procedures for military commissions prescribed under
chapter 47A of title 10, United States Code (as added by subsection
(a)).


So far, everything we’ve dealt with have been the changes and additions to the UCMJ section of the US Code, to handle the new military commissions.

Section 6 moves on to amend the War Crimes section of the Code to spell out exactly what a “grave breach” of GC III article 130 includes. It goes well above and beyond the things listed here http://www.icrc.org/ihl.nsf/WebART/375-590156?OpenDocument in the GC, and sets the bar higher. It also specifies that No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441. It then adds the list of ‘grave breaches’ as subsection (d). That list is on pages 34 and 35 of the .pdf (link at the bottom). These are the things that the US agrees it will not do in the interrogation of prisoners.

Now we get to the par that has so many of the Left up in arms. The Habeas Corpus stuff. The bill reads thusly-

SEC. 7. HABEAS CORPUS MATTERS.
(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):
(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.’’.
(b) EFFECTIVE DATE.—The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act, and
shall apply to all cases, without exception, pending on or after
the date of the enactment of this Act which relate to any aspect
of the detention, transfer, treatment, trial, or conditions of detention
of an alien detained by the United States since September 11,
2001

After much digging, all I can find is that this section is not really new. The referenced section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) is from the Detainee Treatment Act of 2005. It specified the same things, but limited it to Guantanamo Bay. Let me say that again…THIS IS NOT NEW. Where was the uproar a year ago when this went into effect then? And again, to clarify, this ONLY applies to aliens, NOT citizens of the US. I point that out repeatedly, because some on the Left are so paranoid and fearful as to think that THEY will be ‘disappeared’ just for being anti-Bush.

So what ARE the recourses for UEC who are US citizens? Well, off hand I don’t know, because this piece of legislation doesn’t cover them AT ALL. That’s why, after reading through this whole thing, I don’t get the hysteria I see on the Left.

So, I have a question (or three) for you all-

Would the people who are upset that the UEC are being held ‘indefinitely’ be as outraged if these were traditional POWs? Haven’t we generally held POWs until the end of hostilities? Do POWs have a right to Habeas Corpus?

Link to the final Senate bill in .pdf form-
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf

Instapundit has a good roundup of info here- http://instapundit.com/archives/032855.php

Tags-GWOT