H.R. 6166: Military Commissions Act of 2006
Update 12/07/06: S. 4081, Habeas Corpus Restoration Act of
2006
http://www.leahy.senate.gov/press/200612/120506.html
Duncan Hunter (R.) CA Architect of the Military Commission
Act 2006(presidential candidate for 2008)
or
Our Grandchildren are Going to Hate Us!'
OR
Why did 65 US Senators break a solemn oath? Watch. Listen
The Oath of Office
Uploaded by apfnorg
A History of Lawless Government
TRIAL BY JURY
http://www.apfn.org/APFN/trial1.htm
Keith Olbermann: on the signing of the Military Commissions
Terrorist Surveillance Act of 2006:
S. 3931 and
Title II of S. 3929, the Terrorist Tracking
http://www.apfn.org/apfn/TSA-2006.htm
During his October 18, 2006 broadcast of MSNBC's Special Report, commentator Keith Olbermann chided President Bush for signing the Military Commissions Act of 2006 into law.
While we certainly don't agree with every detail of Olbermann's commentary, a recent MSNBC news article printed excerpts which we certainly find to be right on target:
We have lived as if in a trance.
We have lived as people in fear.
And now – our rights and our freedoms in peril – we slowly awake to learn that we have been afraid of the wrong thing.
Therefore, tonight, we have become the true inheritors of our American legacy.
For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:
A government more dangerous to our liberty, than is the enemy it claims to protect us from. http://www.jbs.org/node/1452
On September 28, the U.S. Congress passed the Military Commissions Act of 2006 (MCA). Though its title refers to military commissions, the new legislation does much more than authorize and establish procedures for military tribunals of foreign terrorist suspects. As Congress’s first comprehensive foray into detainee policy, it affects an array of important issues, including the role of U.S. courts in protecting the fundamental rights of detainees, the implementation of the Geneva Conventions under U.S. law, and the prosecution of abuses by U.S. officials.
usqna1006web.pdf
download PDF (90.8 kibibytes)
Q and A: Military Commissions Act of 2006
http://hrw.org/backgrounder/usa/qna1006/
H.R. 6166: Military Commissions Act of 2006
To amend title 10, United States Code, to authorize trial by military commission for violations of the law of war, and for other purposes.
http://www.govtrack.us/congress/bill.xpd?bill=h109-6166
Introduced: Sep 25, 2006 Duncan Hunter
United States RepresentativeSponsor:
State: California, District 52 Party: Republican Birthday: May 31, 1948 / 58 years old Religion: Baptist Last Action: Sep 27, 2006: The Clerk was authorized to correct section numbers, punctuation, and cross references, and to make other necessary technical and conforming corrections in the engrossment of H.R. 6166. Full Text: Text or PDF See also: H. Res. 1042, H.R. 6054: Military Commissions Act of 2006, S. 3861: Bringing Terrorists to Justice Act of 2006, S. 3886: Terrorist Tracking, Identification, and..., S. 3901: Military Commissions Act of 2006, S. 3930: Military Commissions Act of 2006
UPDATE: H.R. 6166: Military Commissions Act of 2006
Military Commission Act Not Lawfully Passed
President’s Inaction Equals ‘Pocket Veto’
by Pat Shannan
Talk show host Alex Jones’ brief interview last week with an unknown caller has sent constitutionists and legal researchers scurrying for the law books.
“The Military Commission Act is not law!” the man barked. “The ‘pocket veto’ clause of the constitution has already nullified it.”
He then pointed out to the national radio audience exactly what the part about “pocket veto” in Article One, Section 7 of the U. S. Constitution means. Indeed, it appears that
President Bush’s signing of the infamous “6166,” which in effect eliminates the 4th Amendment protection of citizens in their homes and a whole lot more, is moot. He was too late.
Now Jones and many others are wondering, who in an official capacity is going to point this out and enforce it?
Here is what the law says and what happens when a sitting president sticks a bill passed by congress into his pocket instead of signing it and sending it back:
A Pocket Veto occurs when the President fails to sign a bill within the 10 days allowed by the Constitution.
Congress must be in adjournment in order for a pocket veto to take effect.
If Congress is in session and the president fails to sign the bill, it becomes law without his signature.
Now to the current specifics.
From the U.S. Constitution Article 1, Section 7: "...If any Bill shall not be returned by the President within ten Days
(Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevents its Return, in which Case it shall not be a Law."
Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden. A pocket veto is a legislative maneuver in American federal lawmaking. The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays). If he does not, then it becomes law by default. The one exception to this rule is if Congress adjourns before the ten days are up. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. Ignoring legislation, or "putting a bill in one's pocket" until Congress adjourns is thus called a pocket veto.
Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it “vetoed” by constitutional standards.
On September 6, 2006, President Bush asked Congress to pass the Military Commission Act of 2006. This Act – among other things – sought to re-define U.S. obligations under Common Article 3 of the Geneva Conventions, international treaties signed by every country in the world. Common Article 3 places an absolute prohibition on inhumane treatment of detainees during an armed conflict.
Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a "flexible" standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. Human Rights First criticized the Administration's proposal for adding ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses.
In response to the administration's proposal, more than 45 retired senior military leaders wrote to members of the U.S. Senate expressing their opposition to redefining Common Article 3 on the grounds that it would compromise the safety of U.S. Service men and women. They were joined by Former Secretary of State Colin Powell and former U.S. Chairmen of the Joint Chiefs of Staff John Vessey, Hugh Shelton, and William Crowe, who also sent letters expressing their opposition to redefining Common Article 3.
Spearheaded by Republican Senators John McCain, John Warner, and Lindsey Graham, the Senate Armed Services Committee passed an alternative bill, sponsored by McCain, Warner, and Graham, that preserves Common Article 3. The Administration then agreed to negotiate with the key Senators, and a compromise was reached on September 21, which preserved the meaning and requirements of Common Article 3. Human Rights First welcomed this aspect of the compromise. Human Rights First opposed the final version of the Military Commissions Act, however, because it contained a number of provisions that raised serious concerns about compliance with the Geneva Conventions and with fundamental fair trial and due process principles. Among the most troubling aspects of the Military Commissions Act are provisions that purport to:
Grant unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants”, and possibly to detain indefinitely, an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States
Deny independent judicial review, through habeas, of detentions of U.S. legal permanent residents and non-citizens
Limit the sources of law to which the courts may look and the scope of review on appeal
Narrow the scope of the War Crimes Act and seek to eliminate accountability for past violations of the law by the president and his administration.
Permit evidence obtained through coercion to be used in the military commission proceedings, with certain limitations.
Permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence.
Restrict full disclosure to the accused of exculpatory evidence
Give the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials
Courts have never fully clarified when an adjournment by Congress would "prevent" the President from returning a vetoed bill. Some Presidents have interpreted the Constitution to restrict the pocket veto to the adjournment sine die of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled that a bill had to be returned to the chamber while it is in session and capable of work. A three-day recess of the Senate was considered a short enough time that the Senate could still act with
"reasonable promptitude" on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases[1].
For matters regarding the authority of the federal government, the place to start the analysis is with the United States Code. In 1 U.S.C. § 106a, we find the following:
Section 106a. Promulgation of laws
Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President, or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President; and whenever a bill, order, resolution, or vote is returned by the President with his objections,
and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both Houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Archivist of the United States from the President of the Senate, or Speaker of the House of Representatives in
whichsoever House it shall last have been so approved, and he shall carefully preserve the originals.
Attorney and constitutional expert Harmon Taylor of Dallas, Texas harbors some consternation about the federal courts disregarding the constitution in recent years and ruling on federal statutes and court precedent.
He points out, “This language is curiously silent regarding the "10-day Rule" set forth in Art. I, § 7, cl. 2. It is also noticeably silent about adjournment and any effect that adjournment may have on the "’10-day Rule.’
”Therefore, the next source to check is judicial construction, and the best starting place for that is with Supreme Court opinions. While Clinton v. City of New York, 524 U.S. 417 (1998), specifically addresses and thwarts executive law-making efforts via the so-called "Line Item
Veto," and, so, is not directly on point with our current question, it's very helpful on the applicability of Art. I, § 7, cl. 2, generally, thus, the "10-day Rule," in particular. The Court cites the law-making procedure in full in n.28. Clinton, 524 U.S. at 438-39 n.28. Even more
importantly, the Court identifies that the "veto" power being analyzed is read in terms of the whole context. This is the point raised by n.29.
Applying that to the present circumstance, it's difficult to picture how the Supreme Court would read the whole of Art. I, § 7, cl. 2 for purposes of "veto" analysis but then read only part of it for purposes of a question under the "10-day Rule." So, where all of Art. I, § 7, cl. 2 is material,
then both the "10-day Rule" and "adjournment" are material procedural facts in determining whether an act by the "congress" and presented to the "president" actually produced federal law.”
Taylor also pointed out to us that a separate new question arises as to whether the congress may enact legislation inconsistent with the Geneva Conventions to which the federal government is a signatory. In the recent case of Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749 (2006), the Supreme Court clearly identified several variances between
the "military commission" process being utilized by the present administration and the trial process contemplated by the Geneva Convention. Should it turn out that the most recent legislation implements that same, or a very similar,
"military commission" trial process, already characterized by the Court as "illegal," then the question arises as to whether legislation that strays from the Geneva Convention standards is federal law.
“The answer may seem intuitively obvious,” Taylor said, “but this one will take some additional study and reflection. Your conclusions are correct, constitutionally speaking,” he said, referring to President Bush’s delayed signing of the bill, “but you can bet that the Supreme Court, if it comes to that, will do everything it can to avoid making a constitutionally based decision.”
Indeed. Even as the most amateurish constitutional historians realize, we have not been able to keep the republic Ben Franklin feared we could not 220 years ago. Now it seems we may have to be concerned with that piece of philosophy from Mao -- the one about “Power coming out of the barrel of a gun.”===========================================
AMERICA IS NO LONGER FREE
by Paul Lehto, Attorney at Law
Habeas corpus -- it's your most fundamental legal right, your right to go to a court and get an order requiring the government to prove that it is holding you in prison with proper legal authority to do so. Without that right, one necessarily lives in a dictatorship. President Bush today on October 17, 2006 signed a bill repealing that law, meaning that the administration need not comply or show compliance with law any more with regard to who goes to prison or Gitmo.
While it supposedly applies just to terrorism cases, that doesn't prevent it from ending the rule of law in the United States for our newly all-powerful Executive. This is true not just because terrorism is construed so broadly in the prohibition of "material support" for terrorism (which by the way has already been held to include a lawyer's press release on behalf of a terrorist client) but because the administration NEED NOT PROVE IT'S REALLY TERRORISM because they don't need to answer to any court in the land at any time.
Even "Justice" Scalia wrote in the Hamdan case that "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." That very core of liberty died on October 17, 2006 with the signing of the Military Commissions Act of 2006 and its elimination of habeas corpus.
Oh yeah, it also legalized torture wholesale. While misleadingly purporting to prohibit a few forms, upon full analysis it prohibits none. But who's going to know since your relatives won't be able to find out where you are anyway, right? Habeas corpus ("produce the body") was not supposed to mean habeas corpses. Habeas corpus started as soon as human beings had the yearning to breathe free of the abuses of unchecked power of a king, aristocrat or lord, starting around the year 1215. We now have a pre-1215 mentality, all because of fear of some primitive and violent guys living in caves somewhere. Many of us are not intimidated.
Yet the same day as the signing of this Military Commissions Act of 2006, a lawyer following her ethical duty to represent her client and ill with breast cancer was sentenced to 2 and a half years in prison for the simple act of issuing a press release on behalf of a terrorist client in prison, which was judged "materially aiding" terrorism. (Such press releases for unpopular clients are hardly ever printed verbatim in any respect by newspapers, yet the allegation was that there could be a coded communication in the press release and there was a no-communication order in effect.) While this terrorist is a genuine terrorist, there's nothing in the law that distinguishes between representing serious terrorists and representing "innocent terrorists" (if there is such a thing) or minor ones, but in any case, remember, they don't need to comply with habeas and show that you are guilty anyway! At most, they just think to themselves "this guy's a terrorist" and you disappear into the torture chamber with no right to be heard from, even indirectly through your lawyer, which you have no enforceable right to anyway.
Even public opinion will likely not catch up with this because people will just disappear and who knows, maybe the missing person just went off on a lark or a fugue to start a new life, right?
Consequently, on October 17, 2006 freedom died in the United States of America. We now live in a dictatorship. We live in a dictatorship even if you think George W. Bush will be a wise and beneficent king or dictator. It is defined as the possession of absolute power as opposed to checks and balances.
In the Keith Olbermann commentary at the first youtube link below; I agree with Professor Turley (Constitutional Law) that people "really have no idea how significant this is." Turley says we now have an "absolute ruler" which is really just another way of saying dictatorship. He's not kidding. I'm not kidding.
I'll be releasing an extended (and devastating, early readers say) critical piece on this within 48 hours, but in the meantime and after that please consider the importance of this issue is at a WHOLE OTHER LEVEL. It's not an "issue" that we form polite activist groups to respond to.
The Executive Branch now has full discretion to imprison anybody they want to without charge or trial or bail and there will be nothing anybody can do except beg the King. I.e. there's no rule of law applicable to the administration. EVERY SINGLE AMERICAN LAW was essentially repealed, because the administration need not prove to anybody that it has complied with the law by indefinitely detaining you, your relative or anyone else.
The only thing I don't agree with Turley on is this: There is not a giant Yawn, there are a lot of people shocked, many crying, millions disturbed, millions more waking up. It's always hard to be among the first to know and to wait for the rest of the country to catch up, but somebody has to be in that position. Let's not, because we are among the first millions to wake up, send out the message that getting the American dream back is relatively hopeless based on the Yawn seemingly heard today. After all, there is no media echo besides Olbermann to get the word out and reinforce it. But there will be. I also disagree with Turley's approach, even as he makes strongly worded comments that are nevertheless scholarly and restrained in tone and volume, because it's inappropriate and (if you believe in Constitutional rights) not unlike talking in a similar dispassionate tone when a masked man walks into your local elementary school with automatic weapons drawn.
For a more appropriate tone, here's another two minute video below that was filmed right before this bill was signed but it nevertheless applies to this situation, and gives advice on what to do when "they come for your freedom." Paul Revere said "the Redcoats are coming". Today, "the Redcoats already came."
These situation of legalizing torture and eliminating habeas corpus is WAY WAY WAY "out there" in terms of extreme. Bush and his administration are incredibly isolated now, seeking to legalize the very things we prosecuted ourselves in WWII like waterboarding. If I hear anyone even IMPLY that we live in a free country, the correction will be swift. WE DO NOT LIVE IN A FREE COUNTRY ANY MORE. PERIOD.
The hopeful note is this: We can recognize how incredibly isolated both in the world and in our own country this Administration is, and we can turn away, and withdraw any remaining support and respect. But, if we react just in fear, whether fear of Gitmo or fear of torture or fear of terrorists, the dark curtain of dictatorship will descend further and their power will consolidate. In the end, Americans will not be denied freedom in a struggle for freedom on their own soil.
Paul Lehto
Attorney at Law
lehtolawyer@gmail.com
Permission granted to distribute in full with attribution.http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x2424276
=====================================================
Bush's 'interrogation' act takes away rights of every U.S. citizen
Guantanamo Bay just got a whole lot more controversial.
Isaac DeVille
Signed into existence Tuesday, a new bill called the Military Commissions Act of 2006 would allow the government to hold suspected terrorists without the rights of habeas corpus.
Habeas corpus is the right to petition the government for unlawful imprisonment — leaving detainees in places, such as Gitmo, in a legal black hole. President Bush said this bold and new legislation was "fair, lawful and necessary," while the leader of the American Civil Liberties Union, or ACLU, called it "one of the worst civil liberties measures ever enacted in American history."
"The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions," said ACLU executive director Anthony Romero.
Perhaps the ACLU's words would have much less gravity to us if our president had a better track record with human rights — we all remember the chilling stories about Abu Ghraib Prison and Guantanamo Bay. Our memory is seared with the pictures of humiliation and torture, which made us sensitive to the legal rights of detainees.
Now that there is a new development, are we to believe that not only will these people be tortured, but also they are damned to live in these places for two years, three years, 10 years … or more?
Not so, say many of the new bill's adherents. Many point out the bill, while denying habeas corpus and legal counsel, still allows for a military trial. And to further support the bill's just cause, they then point out it bans torture.
A lot of our fears might be calmed by these assurances, but in my case, they are not. I look at these provisions as almost a token gesture to maintain only the illusion of humane treatment. I see that the United Nations has been so displeased with our breaking of human rights, they said Guantanamo should be shut down.
I see that our government claims all military conduct at our prison camps remains consistent with the Geneva Convention — then I see the pictures of the tortured detainees and come to a conclusion: Either our government is lying, or it doesn't know what constitutes torture.
At Abu Ghraib, men were threatened with the prospect of being torn to bits by dogs or told to strip naked and lay on one another to replicate sodomy. At Gitmo, there were stories of the Quran being flushed down toilets and female interrogators threatening the detainees with what they said was menstrual blood.
One of the most brutal tactics used is a technique called "waterboarding," during which detainees are made to believe they are drowning and are shocked intermittently at the same time.
While Defense Secretary Donald Rumsfeld said those techniques are carried out independently of the government and such efforts are in no way condoned, the fact similar tactics are used in two different places across the globe is proof the government is directing these efforts.
Either that, or "great sick minds think alike." Let's face it: The blood, the flushing of the Quran and Abu Ghraib abuse are tactics too intelligently carried out to be mere isolated incidents. They are directed at the psychology of the Middle Eastern culture.
There is a specific definition of "maleness" in Middle Eastern culture, and to use this psychologically against prisoners is a form of humiliation — a humiliation that many argue is, indeed, torture.
But not so, according to critics. They say if there is no long-term damage done to the body, it is not torture. So, what does one have to do in order for it to be torture? Get out the iron maiden and chains? If our government uses the word "torture" so loosely, what credit are we to give it in the term "fair trial"?
I understand the need to question suspected terrorists. In fact, if it were Osama bin Laden or one of his buddies in one of these prisons, I probably couldn't care less. However, the concern is about innocent Americans. Let's say some kid is in the wrong building at the wrong time and is sent to one of these places. He has no right to habeas corpus, no right to legal consultation, can be tortured — and could be there for the greater part of his life. Doesn't this scenario require some sympathy? I would hope so — our government is supposed to be equal and just.
We must do whatever is in our power to catch the terrorists but not at the cost of our own ideals. In hunting the terrorists, we must make sure we do not sink to their level, and that includes through new bills like the Military Commissions Act. After all, as a great mind once said, "If you gaze for long into an abyss, the abyss gazes also into you."
Isaac DeVille, an English junior, can be reached at devillei@msu.edu.
http://www.statenews.com/op_article.phtml?pk=38235
Military Commissions Act infringes on Americans' freedom
Sean Ruppert
Staff Writer
On Tuesday, your president signed into law the Military Commissions Act of 2006. This law, among other things, allows him to have anyone suspected of terrorist activity imprisoned without trial indefinitely.
We now live in a country where one man, for any reason he sees fit, can have another man or woman picked up off the street and placed in a cell without having to justify it to anyone, including the person imprisoned.
For the past few years, the neo-conservative Republican Party has been the self-appointed judge of what is and is not patriotic. So I would like to be the first registered Democrat to say that this is the most disloyal and un-American act undertaken by our government since the internment of the Japanese during World War II. Not only has this law betrayed the people of the America, it has betrayed the very ideals that our founding fathers built this nation upon.
Along with voting and freedom of speech, the ability to quickly challenge any imprisonment handed down from our government in a court law, judged by a jury of our peers, is one of the most basic rights that we have. It is part of what made this country a beacon of hope to so many throughout the world, and it is now being chipped away at using fear as a justification.
What this law does, in conjunction with previous legislation, is allow the president to name anyone, including American citizens, an "Unlawful Enemy Combatant," a term applied to anyone working to attack the United States who is not a uniformed member of a national army.
Once this label is applied, the person no longer has the right to petition any court, see any evidence, or even hear what crime they are accused of committing.
If the government does decide to hold a trial for anyone arrested under these laws, and I say "if," because it is under no obligation to do so within any time frame, it will be done not in civilian court but by military tribunal.
Away from the public eye, a military official will judge the innocence or guilt of anyone brought before him based on evidence that the defendant is not allowed to even see or dispute if it has been labeled as classified.
The act also prohibits the use in military trial of any statements coerced out of the defendant by torture, but allows the judge to make a decision to include such statements should he find that it would better serve justice to allow them into evidence.
When this is combined with the very loose regulations we have implemented about what is and is not torture, it makes the rules prohibiting it meaningless.
So basically, what this law does is create a clear legal path for our federal government to pick up anyone they like, lock them away without charges until they can be tortured into confessing, and try them without public knowledge in a less then impartial setting.
Some would say that this is a good thing, that terrorists have no rights. I agree, anyone found to be plotting terrorist should be dealt with swiftly and have the harshest penalty the law allows come down upon them. It is not the rights of terrorists I am concerned about but the rights of Americans to defend themselves against charges leveled upon them. Terrorists and murderers are tried transparently in civilian courts because mistakes are made, people are falsely accused, everyone is innocent until proven guilty, and the public has a right to know who its government is locking up and why.
The original language of this bill made it only apply to those caught outside the borders of America, but before passage through Congress, it was amended to apply to any non-citizen of the United States, within our borders or not. This includes all legal immigrants like the international students at WVU, as well as 12 million permanent residents who pay taxes and are part of this country.
Before you think that this does not then apply to you as an American citizen, though, know that it very well can.
While the term alien, meaning non-citizen, appears throughout the legislation, it does not appear in the definition of "Unlawful Enemy Combatant," leading many legal experts to believe that this law will be applied to United States citizens who have been born and raised in this country as well.
A case of this has already happened: Jose Padilla, born a U.S. citizen, was arrested on suspicion of terrorist activity in Chicago after returning from a visit to several Middle East countries. He was labeled an enemy combatant by the president, and sent to a military prison camp without charges where he stayed for three years.
Should we feel sorry for Jose Padilla? If he is guilty, which he probably is, then no, we should not.
The point is that without a trial, there is no way to know.
I don't believe that the president is going to begin rounding up significant portions of the population and locking them away tomorrow, but I do believe that a legal mechanism that would allow him to do goes against every idea that this country was founded on. By signing that bill and accepting this power, which will be granted to every president that follows him, George Bush was not only shortsighted and irresponsible, but in dereliction of his sworn duty to defend the United States constitution against all enemies, foreign or domestic. http://www.da.wvu.edu/XMLParser/printstory.phtml?id=24382 site down
Under the Military Commissions Act of 2006, you could be.
Are YOU the Enemy?
by Joe Wolverton II, J.D.
October 30, 2006
The Military Commissions Act of 2006 allows the executive branch to circumvent the Constitution, endangering the due process of law for all Americans, not just terrorists.On September 28, by a vote of 65-34, the Senate formally passed S. 3930, the Military Commissions Act of 2006 (MCA). The next day, the House of Representatives followed suit, passing the act by a vote of 250-170, and the affixing of the president's signature is now a formality.* This legislation is being highlighted by the Bush administration and most Republicans as a get-tough-on-terrorists measure that allows "alien unlawful enemy combatants ... [to be] subject to trial by military commissions" without the constitutional safeguards American citizens possess against illegal detainment and judicial railroading. Moreover, the bill allows "pain or suffering incidental to lawful sanctions" and "statements ... obtained by coercion" — think administration-approved methods of torture. We are being told that this action is preventive medicine to heal a world gone wrong. Question now: with this fix in place, what's the prognosis for the patient?
To begin answering that question, imagine the following scenario: your son Michael (or daughter Michelle) is in Florida on vacation; you speak to him via cellphone when he arrives at the airport and he is waiting in line to check his bags. You go to your local airport at arrival time to pick him up and he never appears. You call all the relevant authorities, including the police, FBI, CIA, and Homeland Security, and no one acknowledges having any information on your son. You go almost out of your mind; you go to the airport in Florida, interview security guards, concession stand workers, and cabbies. You learn nothing. After six months of never-ending worry gnawing at your gut, your son is dropped at your house. You learn that he was mistaken for a known terrorist by the CIA, flown to Cuba, and interrogated by being repeatedly put in a giant freezer and chilled to within an inch of his life and by being painfully deprived of sleep.
All of this would be allowed under the new act. Worse yet, imagine that the government never figures out that your son is innocent of all charges, and he never returns.
Habeas Corpus
In effect, one could say that the sick world is being given potent poison to bring about the cure sponsored by President Bush. Granted, the bill does not apparently treat citizens and foreigners equally, and the harshest treatment would generally be doled out to foreigners, but is the bill something we want to inflict on ourselves or others? Can we justify it by saying that the majority of those scooped up will be terrorist killers who deserve what they get? Let's look at what the bill would do.
A component of this bill that has attracted the attention of legal commentators and civil libertarians alike is that part which authorizes the president to suspend the right of habeas corpus. Habeas corpus is Latin for "you have the body." It grants prisoners the right to request from a judge the reasons for his incarceration. Article 1, Section 9 of the United States Constitution plainly states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
Despite the Constitution's clear restriction on the suspension of this bulwark of liberty, the bill states:
No court, justice, or judge shall have jurisdiction to hear or consider any claim or case of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien's detention, transfer, treatment, or conditions of confinement.
Torture
The act gives President Bush the power to define for American interrogators behavior that does or does not constitute torture, physical and mental pain, or serious coercion. Admittedly, according to the black letter of the Military Commissions Act, evidence obtained by torture is inadmissible against the suspects. But what constitutes torture?
The legislation leaves it up to the military judge to decide whether or not the coercive methods used to elicit evidence from detainees constitutes torture. The act instructs the judge to weigh the "totality of the circumstances" surrounding the garnering of the prisoner's testimony in making this crucial determination. This sort of ad hoc determination of what is and is not torture is unsettling and capricious. Remarkably, these parameters will be the only binding guidelines for the CIA and others responsible for gathering intelligence from detainees, regardless of principles of the Geneva Convention, rulings of the Supreme Court, or constitutional prohibitions to the contrary.
Geneva Convention
This act dismisses outright the limitations and guarantees provided by the Geneva Convention, as well. After the vote, Senator Lindsey Graham (R-S.C.) tried to make the act sound as if it never comes close to skirting the line in the area of personal legal protections: "America can be proud. Not only did she adhere to the Geneva Conventions, she went further than she had to, because we're better than the terrorists." But his statement didn't even hold water with the military lawyers who would be charged with operating the tribunals. Several commented on Common Article 3 of the Geneva Convention. Article 3 (called "Common Article 3" because it is common to all four of the conventions) proscribes the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
In addressing this issue before a Senate committee, Brigadier General James C. Walker, Staff Judge Advocate General (JAG) for the Marine Corps, lamented: "I'm not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people, where an individual can be tried without, and convicted without seeing the evidence against him. And I don't think the United States needs to become first in that scenario."
This new law clearly ignores General Walker's concern. Specifically, the law declares: "It generally is neither practicable nor appropriate for combatants like al-Qaeda terrorists to be tried before tribunals that included all of the procedures associated with courts-martial."
Brigadier General Walker's warning voice was but one in a respectable chorus of credible opponents harmonizing in their condemnation of the unconstitutional and unjust aspects of the new law. None of the parts of this song sound as persuasive as that of the officers of the armed forces justice system, known as the Judge Advocate General (JAG) Corps. These uniquely interested and informed military legal experts adamantly oppose several key aspects of this new legislation.
Referring to the new law's provision that a detainee is not allowed to see the evidence presented against him, Rear Admiral Bruce E. MacDonald, the Navy's top lawyer, echoes his colleague's sentiments: "I can't imagine any military judge believing that an accused has had a full and fair hearing if all the government's evidence that was introduced was all classified and the accused was not able to see any of it."
Not to be left out of the battle, the Air Force's chief lawyer, Major General Jack Rives, flew into the fray and dropped a bomb on the MCA, declaring that the commissions established by the act do "not comport with my ideas of due process."
Are You an Enemy Combatant?
Americans would be forgiven for naively believing that while the threats to liberty in the MCA tip-toe toward tyranny, they will only be used toward that end against those with at least diaphanous ties to terrorism. Namely, they would be employed to protect Americans from that group of n'er-do-wells known as "unlawful enemy combatants." In language that is sure to shake your sense of safety, the following is the MCA's definition of an "unlawful enemy combatant":
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.
Notice that this definition contains no exception for Americans; it throws the blanket over citizen and alien alike by using the word "person" rather than "alien." Jose Padilla found this out firsthand.
Jose Padilla is an American — born in New York and raised in Chicago. On May 8, 2002, he was arrested in Chicago after returning from Pakistan upon suspicion of being linked to the September 11, 2001 terrorist attack. Padilla's attorney immediately filed a habeas corpus petition with the United States District Court for the Southern District of New York, seeking to invoke his client's constitutionally guaranteed right to be informed as to the justification for his confinement. The court denied Padilla's petition citing the president's authority to designate any person, citizen or alien, an "enemy combatant" and to detain such person indefinitely.
Padilla appealed this decision to the 2nd Circuit Court of Appeals. The appellate court held that the president had no such authority. The administration then appealed this ruling to the Supreme Court, where the justices were called to consider the legitimacy of the president's power to suspend the constitutional protections of the due process of law from an American citizen. The court meekly dodged this issue, however, and remanded the case back to the district court for dismissal without prejudice. Admittedly, Jose Padilla has a history of criminal behavior, and he was no poster boy for the law-abiding, but the rights set out in the Constitution are designed to protect all Americans, likeable and detestable.
Another character ensnared in the "illegal enemy combatant" net was Yaser Esam Hamdi. Hamdi was born in Baton Rouge, Louisiana, to Saudi Arabian parents. In 2001, Hamdi was captured by the Afghan Northern Alliance and subsequently handed over to the U.S. military. Hamdi was accused of being a member of the Taliban regime, but he and his family argued that he was in Afghanistan as an aid worker and had been erroneously detained.
Undeterred by his parents' testimony, Hamdi was shipped to the detention facility at Guantanamo Bay, Cuba. Later, he was transferred to a brig in South Carolina. In June of 2002, a petition of habeas corpus was filed on Hamdi's behalf by his father. The court ruled that the petition was proper and granted Hamdi's father standing to act in the place of his son. The Fourth Circuit Court of Appeals reversed that decision, however, ruling that the "security interests" of the country outweighed Hamdi's right to file a habeas corpus petition. Upon remand, the lower court denied the government's motion to dismiss Hamdi's petition. The court requested evidence from the government that would prove Hamdi's alliance with the Taliban and his designation as an "unlawful enemy combatant."
The government refused to comply with the court's order, and appealed the request to the Fourth Circuit. Remarkably, the Court of Appeals held that the president's power to make war (is this not a power delegated in Article I, Section 8 of our Constitution exclusively to the Congress?) prohibited a court from interfering in matters of national security. The decision was appealed to the Supreme Court.
Although the Supreme Court's opinion in Hamdi is diffuse and complicated, eight of the nine justices agreed that the Constitution proscribes the Executive Branch's attempt to hold indefinitely an American citizen and to deny him the protections of the Bill of Rights with regard to the due process of law.
Could a completely innocent person also be ensnared? Yes. Khalid al-Masri, a German citizen, was abducted in 2003 while he was on vacation, taken to Afghanistan, and interrogated and tortured for five months before the CIA figured out that they had abducted a completely innocent man who just happened to have the same name as a wanted terrorist. (Why the CIA thought that a well-known terrorist would have been traveling and vacationing using his own name is anybody's guess.)
Passage of the MCA was pushed by the current administration in a bid to get congressional approval of all the illegal actions that they had already been taking, obviously banking on the idea that if they could get congressional approval, they would also get Supreme Court approval.
Prognosis: Long-term Suffering
The Military Commissions Act of 2006 is an eradication of the most basic protections of liberty enshrined for over 200 years in our sacred Constitution. The all-encompassing powers granted to the president by this law potentially forbid any man, woman, or child deemed an enemy of the administration or its policies from seeking judicial relief from unlawful imprisonment. Most terrifying of all, this law enthrones President Bush — and his successors, whether Democrat or Republican — as the ultimate arbiters of justice to those suspected of being America's enemies. You can only hope that that person is not you.
Those who fail to see the dire gravity of this legislation and who prefer to take refuge in the naive partisan belief that President Bush and the Republican Congress would never abuse this tremendous power, should contemplate well the fact that both the White House and Congress may very possibly change to Democrat control in the near future. Then will the supporters of the Bush administration's grasp for power have a leg to stand on to even protest, let alone stop, dictatorial exercise of the same power under a Democrat regime run by Clinton, Feinstein, Boxer, Pelosi, Schumer, and the like?
This law, as well as other recently chronicled usurpations, sacrifices the due process of law on the altar of absolutism. There can be but one final obstacle to complete executive power — the people of the United States of America. We must hold every member of Congress accountable who voted for this unprecedented and unconscionable breach of our constitutional rule of law, and we must seek out and support men and women determined to uphold the federal oath of office and courageously defend the Constitution against all enemies — foreign or domestic. If we do not do this, are we really better than the terrorists?
* To see how your U.S. representative and senators voted, see House vote #39 and the Senate vote #39 in the "Conservative Index," pages 22-31. http://www.apfn.org/pdf/ci-109-4.pdf http://www.thenewamerican.com/artman/publish/article_4269.shtml
Friday, October 20, 2006
Law legalizes shameful treatment
By HELEN THOMAS
HEARST NEWSPAPERS
WASHINGTON -- President Bush has signed the law that legalizes the administration's shameful treatment of detainees suspected of terrorism.
The same measure also empowers the president to define torture. It's a sad legacy for the U.S. and its already-tarnished world image.
The new law -- the Military Commissions Act of 2006 -- establishes a system for trying suspects in military tribunals. It was enacted after the Supreme Court ruled in June that the administration plan for trials by military commissions violated U.S. and international law.
In effect, Bush got all he wanted from a submissive GOP-dominated Congress and a few spineless Democratic lawmakers. The president did not issue his customary signing statement interpreting implementation of the law. He didn't have to because lawmakers on Capitol Hill had handed him total victory.
The far-reaching legislation gives Bush the right to decide what constitutes torture. The president has often said "we do not torture," despite evidence to the contrary -- and photographs from Abu Ghraib prison.
The president also can set guidelines for interrogation of prisoners. White House spokesman Tony Snow declined to say whether "waterboarding" -- in which detainees are made to feel they are drowning -- would be permissible.
The law specifically bars blatant abuses including murder and rape and "cruel and inhuman" treatment. But it permits withholding evidence from defendants in certain cases. And it denies detainees the right to file habeas corpus petitions to challenge their detentions in federal courts. The tradition of habeas corpus dates back almost 800 years to the Magna Carta.
Under the new law, Bush also has powers to designate who is an illegal enemy combatant, which potentially subjects U.S. citizens and foreigners to indefinite detention with no power to appeal.
Bush is also allowed to interpret the Geneva Conventions on Humane Treatment of Prisoners of War.
Furthermore, the CIA apparently will be able to continue sending prisoners to secret prisons abroad and agents will have immunity from prosecution for their interrogation practices. Many Europeans who have lived under tyrannical regimes cannot believe the U.S. would submit to such treatment of detainees.
Bush was beaming when he signed the bill on a table with a sign in front that read: "Protecting America." Standing by his side was Vice President Dick Cheney, a prime mover in the administration's drive to enhance presidential power.
But right now those who voted for this law believe it will be help them in the November election. And Democrats who voted against it should watch out for a total GOP assault on their commitment to protecting America from terrorist attack.
Critics see the new law as authorizing creation of a veritable Gulag.
The American Civil Liberties Union called the new law "one of the worst civil liberties measures in American history."
Bush contended that his policies on terrorism suspects did not require congressional approval, manifesting his apparent belief that the president is above the law. The Supreme Court proved him wrong.
Bush's order for warrantless wiretapping of Americans is yet another example of a presidential power grab.
Tom Malinowski, Washington director for Human Rights Watch, said Bush has been accused of "criminal torture in a way that could hurt America and come back to haunt our troops."
The military commissions act is law. All Americans will be tainted by it.
http://seattlepi.nwsource.com/opinion/289344_thomas20.html
October 19, 2006
Habeas Corpus: Working on Commissions
President Bush recently signed into law a significant piece of legislation that has raised a lot of questions -- and a lot of eyebrows. We asked CBSNews.com legal analyst Andrew Cohen to look at the bill on detainees, and tell us what it may mean. -- Ed.
(CBS)
Without overwhelming fanfare, U.S. Attorney General Alberto Gonzales yesterday “hosted” what the White House called an “online interactive forum” to answer questions about the landmark terror detainee legislation his friend and boss, President George W. Bush, signed into law earlier this week. The Attorney General, one of the architects of the Administration’s terror law policies, prefaced the Internet session by telling his fellow online chatters that the new law will “protect the rights of accused terrorists and the safety of the American people.”
The transcript of the event reads like the pep rally it was intended to be. And if the Attorney General actually typed out his responses I’ll be a monkey’s uncle. But one theme struck me as particularly interesting. Over and over again, Gonzales was forced to explain that the most onerous provisions contained in the Military Commissions Act of 2006 does not on its face apply to U.S. citizens. And, indeed, this is true. The suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad.
So while the new law dramatically reduces the legal rights and remedies of resident aliens, it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted. That’s the good news. The bad news is that the Bush Administration, on at least two occasions before the new law was passed, tried to suspend the writ of habeas corpus for U.S. citizens. The men, Jose Padilla and Yaser Esam Hamdi, both were designated as “enemy combatants” by the White House and held for years in military custody without charges or due process before the U.S. Supreme Court essentially bailed them out.
So while there is nothing in the Military Commissions Act that makes it easier for the White House to point an accusatory finger at a U.S. citizen, label that person a terrorist and “enemy combatant,” and then suspend his or her rights, there is nothing in that Act that makes it harder, either. Perhaps that is what helps explain the level of curiosity, if not downright distrust, implicit in some of the e-questions fired at the Attorney General yesterday. “Brad from San Jose,” for example, started his question to Gonzales this way: “I am concerned about the potential for abuse of the new rules. What legal recourse does an innocent suspect have under the new legislation?” Gonzales wisely did not answer the question.
The habeas component of the Commissions Act is likely to generate the most legal scrutiny from the federal courts. The question will be: can the executive branch prohibit resident aliens (and others) from seeking access to the courts after they are designated as “enemy combatants” even if they are apprehended here at home? The White House asked for this prohibition, and the Congress granted it, because the executive and legislative branches have been stung by significant legal losses that have come about as a result of habeas petitions and, because of those losses, the federal courts currently are clogged with other habeas petitions, many of which similarly would succeed. Soon, the federal courts will decide whether the other two branches went too far in trying to freeze the judiciary out of the process.
The other controversial part of the Commissions Act, as several of the Attorney General’s online pen-pals noted, was its explicit endorsement of “alternate” interrogations methods. This gives the White House the legislative go-ahead to continue to use such measures against terror suspects all over the world. It also gives the executive branch a measure of legal and political and perhaps even diplomatic “cover” for this conduct and it allows the White House to essentially judge for itself whether it is complying with the anti-torture provisions of Common Article 3 of the Geneva Conventions. That’s the provision, remember, that the U.S. Supreme Court relied upon this past summer in striking down the Administration’s plan to try the terror detainees at Guantanamo Bay.
The irony of all of us, of course, is that the least controversial part of the Commissions Act is -- wait for it -- the part that deals with military commissions set up to finally process and prosecute the hundreds of detainees now being held at Gitmo. In fact, if you are inclined to bet upon the progress of this new law, bet that the Supreme Court embraces the new rules governing the tribunal proceedings at Gitmo—those rules being a significant improvement on what came before—but is skeptical of, with gusts up to hostile to the other moving parts of the Commissions Act. This means that this grand legislation “solution” we’ve been hearing about for the past few months isn’t guaranteed to do anything but tie up the federal courts for a few more years—a point that didn’t happen to come up during the Attorney General’s online schmooze-fest yesterday.
http://www.cbsnews.com/blogs/2006/10/19/couricandco/entry2109264.shtml
AMERICAN CONCENTRATION CAMPS
http://www.apfn.org/apfn/camps.htm
Congress of the United States
March 24, 1997 "Enclosed is the information you requested pertaining to the Army's policy and guidance for establishing civilian inmate labor programs and civilian prison camps on Army installations. This information has not yet been published (it is currently at the printers), however, it has been funded, staffed, and does reflect current Army policy."
-- Bill Hefner
Member of Congress
A Dangerous Fact Not Generally Known
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
THESE EXECUTIVE ORDERS GROSSLY AND FLAGRANTLY VIOLATE ARTICLE 4 SECTION 4 OF THE CONSTITUTION OF THE UNITED STATES. "THE UNITED STATES SHALL GUARANTEE TO EVERY STATE IN THIS UNION A REPUBLICAN FORM OF GOVERNMENT, AND SHALL PROTECT EACH OF THEM AGAINST INVASION; AND ON APPLICATION OF THE LEGISLATURE, OR OF THE EXECUTIVE (WHEN THE LEGISLATURE CANNOT BE CONVENED) AGAINST DOMESTIC VIOLENCE." "REGIONAL GOVERNMENT IS NOT A REPRESENTATIVE REPUBLICAN FORM OF GOVERNMENT!"
When Government gets out of hand and can no longer be controlled
by the people, short of violent overthrow as in 1776, there are
two sources of power which are used by the dictatorial government
to keep the people in line: the Police Power and the Power of the
Purse (through which the necessities of life can be withheld).
And both of these powers are no longer balanced between the three
Federal Branches, and between the Federal and the State and
local Governments. These powers have been taken over, with the
permission of the Federal Legislature and the State Governments,
by the Executive Branch of the Federal Government and all attempts
to reclaim that lost power have been defeated.
Stated simply: the dictatorial power of the Executive rests primarily
on three basis: Executive Order 11490, Executive Order 11647, and
the Planning, Programming, Budgeting System which is operated
through the new and all-powerful Office of Management and
Budget.
E. O. 11490 is a compilation of some 23 previous Executive Orders,
signed by Nixon on Oct. 28, 1969, and outlining emergency functions
which are to be performed by some 28 Executive Departments and
Agencies whenever the President of the United States declares
a national emergency (as in defiance of an impeachment edict,
for example). Under the terms of E. O. 11490, the President
can declare that a national emergency exists and the Executive
Branch can:
* Take over all communications media
* Seize all sources of power
* Take charge of all food resources
* Control all highways and seaports
* Seize all railroads, inland waterways, airports, storage facilities
* Commandeer all civilians to work under federal supervision
* Control all activities relating to health, education, and welfare
* Shift any segment of the population from one locality to another
* Take over farms, ranches, timberized properties
* Regulate the amount of your own money you may withdraw from
your bank, or savings and loan institution
All of these and many more items are listed in 32 pages incorporating
nearly 200,000 words, providing and absolute bureaucratic
dictatorship whenever the President gives the word.
--> Executive Order 11647 provides the regional and local mechanisms
--> and manpower for carrying out the provisions of E. O. 11490.
--> Signed by Richard Nixon on Feb. 10, 1972, this Order sets up Ten
--> Federal Regional Councils to govern Ten Federal Regions made up
--> of the fifty still existing States of the Union.
More: http://www.apfn.org/apfn/camps.htm
“Torture Taxi: On the Trail of the CIA’s Rendition Flights”
11/14/06 Air America... Peter B. Collins Show
INTERVIEW: authors of the new book “Torture Taxi:
AUDIO:
http://www.apfn.net/pogo/A001I061114torture-taxi.MP3
AMERICAN PATRIOT FRIENDS NETWORK
"...a network of net workers..."
Email: apfn@apfn.org
Last updated 08/26/2010
