A Response
In response to Matt’s post about the Olbermann video on the death of Habeas Corpus. I’m doing this here because I didn’t feel like trying to fit this all into a comment response.
So, let’s start by seeing what the MCA 2006 has to say. Johannes posted the text in an earlier comment, and I’m going to try and put it in English. First, I will be quoting short segments of Chapter 47A of title 10 (Uniform Code of Military Justice), otherwise known as the Millitary Commissions Act of 2006. This can be found here: http://www.loc.gov/rr/frd/Military_Law/pdf/S-3930_passed.pdf I will use short sentences so as not to scare anyone away. Let’s start with some background, and then we’ll see what it implies.
Unlawful enemy combatant (defined by MCA):
- A person who engaged in hostilities or who has intentionally and materially supported hostilities against the United States AND who is not a lawful enemy combatant (we’ll define that in a second)
- A person who has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal (a joint review panel to evaluate whether a given individual qualifies as a lawful combatant, and, as such, P.O.W status).
Basically, an unlawful combatant has both been determined to have been directly aiding in harming the United States AND been determined by a tribunal to not qualify as a lawful combatant (which we will define in a second.) It’s a process to get to this point, and you don’t do it by speeding or writing a book that people disagree with.
Lawful enemy combatant (defined by MCA):
- Member of the regular forces of a State party… i.e. the Nazis in WWII, while against us, were doing so under the direction of another country engaged in military action against us, and so classified for P.O.W. status and all of the rights that permits.
- A member of militia, volunteer corps, organized resistance, etc of a State party opposing us. Same as above, except not full military for the State. Requires that such people are under responsible command (they have a commanding officer), wear a fixed distinctive sign recognizable at a distance, carry their arms openly and abide by the law of war. Basically, follow Geneva conventions, same as everyone else who fights in wars… not too difficult.
- Members of armed forces professing allegiance to a government opposing the United States, but not recognized by the United States. This covers the above two categories for fighters of countries not recognized as States by the US.
So basically what we’re saying here is that it’s pretty easy to keep lawful combatant status.
So, now for the details of how these military commissions work. The basis of the military commission (what unlawful combatants get stuck with) is the code in the UCMJ for defining a general courts-martial, with a few provisions, which I will list. This means that, aside from the exceptions, the trials are conducted in a similar manner to the trial of any US solider accused of a crime. Here are the exceptions to the rights:
- Right to a speedy trial is removed
- Certain rights involving compulsory self-incrimination (these are specified later in the act, and involve stating that unlawful combatants will not be required to testify against themselves, and that statements obtained by torture are not admissible)
- Certain rights involving pretrial investigation (i.e. research to be used for grounds to dismiss the trial before it has even happened)
In addition, it specifies that the said military commission “is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples.’” In other words, a standard court, more specifically dictated by the Geneva Conventions (common Article 3).
The act goes on to very specifically detail many proper proceedings for the treatment of unlawful combatants. I’d love to cover all the details, but no one would ever read it anyway, so I’ll let it be. To be noted, accountability of the commission (yearly reports are required to higher authorities) and the rights and representation of the combatant are all covered here. It states clearly that the MCA ONLY has jurisdiction over alien (i.e. non-US citizen) unlawful enemy combatants. Citizens and lawful enemy combatants do not fall under this code.
Next fun part… what crimes are covered under the MCA 2006. First, “protected” in the follow context refers to any person or building entitled to protection under one or more of the Geneva Conventions, including civilians, sick military personnel, medics, religious personnel, hospitals, museums, schools, etc. That said, here’s the list:
- Murder of protected persons
- Attacking civilians
- Attacking civilian objects (intentional, not incidental, attack of non-military objectives)
- Attacking protected property
- Pillaging (hehehe)
- Denying quarter (i.e. declaring no surrender / kill them all)
- Taking hostages (involves capturing a person and THEN threatening to detain, injure or kill said person with intent of compelling anyone to do something)
- Employing poison or similar weapons
- Using protected persons as a shield
- Using protected property as a shield (i.e. running military operations from a hospital)
- Torture (there’s a long list of details here)
- Cruel or inhuman treatment
- Intentionally causing serious bodily injury (doing so in violation of the accepted laws of war)
- Mutilating or maiming
The list goes on and on, with the crimes increasing in degree, including rape and terrorism. I won’t list the entire group, but you can skip to pages 26-31 of the MCA Pdf I linked to if you want to see the list.
Now for the most controversial part… in theory; the revoking of habeas corpus. “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.” There it is folks… the so-called death of habeas corpus. Wow. Who would have figured we could have brought about a fascist society and ruined all that the US stands for with so few words. Taken out of context of the entire act, they do, admittedly, appear a little more alarming than they actually are, but hardly. Taken in the context of all 38 pages of boring legalese that make up the MCA of 2006, it’s fairly trivial. The greatest breach of our great society in this is if you assume that the constitution and bill of rights afford ALL of the details of due process to every person the US comes in contact with, in which case the provision questionably removes the right of habeas corpus from a select few. However, there are a number of conditions surrounding the ability to remove that right that are arguably inherently met by anyone who falls under the category of unlawful enemy combatant.
The MCA is not a threat to our citizens or society. Heck, a US citizen could send money in an envelope addressed to Osama Bin Laden, and then go blow up a hospital while torturing the patients, and they would STILL have habeas corpus. This act is merely an attempt of the US government to deal with a new threat to people around the world. This act deals specifically with non-US citizens who have been determined by a tribunal to be working outside of the influence of another state, against the laws of war, and, in addition, are also accused of a fairly heinous crime (refer to the list). I can’t state this more clearly. You have to try really dang hard to fall under the category of this act.
I could write a lot more, and a lot more clearly, but no one will read it, and I’m not sure anyone cares. Suffice it to say, the MCA of 2006 is far from the death of habeas corpus, and it’s far from scary. It may not be a perfect solution to the problem, and I could probably point out a couple of flaws, but it sure beats the pants off of having these guys wander free on a technicality because we couldn’t see the case through to the end.
Some links for your reading pleasure: