Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.
I did some googling...

Balkinization: What Hamdan Hath Wrought (September 29, 2006)


Viewed from one perspective, [SCOTUS'] Hamdan [decision] was nothing more than a democracy-forcing decision that required the Administration to prove that Congress supported what he was doing. The President pushed through a bill that did just that. Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3.


Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding. But the fact that the courts can't offer a remedy doesn't mean, I repeat, that the President has no duty to obey the law. And although he now has virtually conclusive authority to interpret non-grave breaches of Geneva, he does not have virtually conclusive authority to interpret either the Bill of Rights or the McCain Amendment.


Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional.

So the President is still accountable, but not to the courts? What is that supposed to mean? That impeachment is the only recourse?

Amnesty: UNITED STATES OF AMERICA: Military Commissions Act of 2006 - Turning bad policy into bad law (29 September 2006)

Now Congress has passed the Military Commissions Act. Amnesty International will work for the repeal of this legislation which violates human rights principles. Among other things, the Military Commissions Act will:
  • Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant"...
  • Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
  • Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes...
  • Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
  • Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.
  • Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.
  • Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence...
  • Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial".
  • Limit the right of charged detainees to be represented by counsel of their choosing.
  • Fail to provide any guarantee that trials will be conducted within a reasonable time.
  • Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
  • Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".
  • Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions"...
  • Endorse the administration's "war paradigm" - under which the USA has selectively applied the laws of war and rejected international human rights law...
Meanwhile the human rights violations continue. The CIA's secret detention and interrogation program retains the full support of President Bush. During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families.

Jurist: 'All the Laws But One': Parsing the Military Commissions Bill (September 25/26, 2006)

In this essay I offer an annotated review of the compromise version [PDF] of the Military Commissions Act of 2006 released late last week. My focus, however, is not on the sections that have so far been the subject of great discussion (classified information, common article 3, habeas corpus, offenses, etc.) but rather on what the compromise drafters are trying to do overall.

It appears that what is going on here is broader than what I have seen described. The compromise drafters appear to be decoupling these military commissions from international law, from domestic courts-martial, from other types of traditional military commissions, from any other law. These alien unlawful enemy combatants, these human beings, are in fact being decoupled from "all the laws but one," in the words of President Lincoln. The power of this effort should not be underestimated because as the lone superpower, the act does no less than push out to the world a state practice that would bring us back to pre-Geneva Convention standards for these people, worthy of only "special process".


This, I would suggest, is the essence of the decision that is going to be made this week by this Congress on this legislation. Is America going to declare certain human beings beyond "all the laws but one" depriving them of common levels of human dignity? This type of separation resonates in American history at many points - in the Constitution in its treatment of slaves, in the reservations for Native Americans, in the exclusion of Asians, in the status of women. It resonates in other countries' histories also, such as in the Black Codes in France, the treatment of Algerians by the French and the laws for the overseas territories, the time of apartheid in South Africa, and the Nuremberg Laws in Nazi Germany. These are only some examples and others can think of more ancient historical references (such as who was a citizen of Athens in the days of its empire).


It might be possible for some lone Senator or some lone Congressperson to stand up and say "This is too much for mankind. We have fought too long to not create these kinds of special processes." We await that champion of human dignity in all its frailness. My fear is that there is no one.

Those whom the Gods wish to destroy They first make mad. -- Euripides
by Migeru (migeru at eurotrib dot com) on Sun Oct 1st, 2006 at 05:22:16 AM EST
[ Parent ]
Thank you for the link to this excellent analysis.  It always helps to have a legal-beagle look at things, though I submit to you that if you read through the act itself, these things are fairly self-evident.  One has to read the act with a mind to what is NOT there, as well as what is there, though.

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. -Margaret Mead
by blueneck on Sun Oct 1st, 2006 at 04:22:26 PM EST
[ Parent ]


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