Think of this document as an unapologetic attempt to hide spilled milk, with hutzpah. As the saying goes, there's no use crying over it. No thanks are in order for the lawyer(s) who ghost-wrote this manure pie. A comparison with titles 10, 18, 28 and 42 in U.S. Code (USC) reveals the bulk of the Act was actually copied from the federal law. What could have been done in a half dozen pages slogs along for 96, and just when you're ready to give up, something very cute happens. The writer(s) make word additions, deletions and substitutions, most of which have little impact on the meaning of the sentence. After many hours of checking this editing of the previous statutes, my opinion is this, along with the endless, rambling reproduction of provisions where simple citations would have sufficed, and an unnecessarily complicated paragraph structure which makes citation almost impossible, was done to put off scrutiny, to discourage a scholarly review and help obscure the few truly dismal and disparaging provisions which were made law to treat prisoners arbitrarily and protect the vicious, lawbreaking killers who torture them. So, to hell with whoever wrote it.
Rather than laundry list or summarize the law, you might prefer a discussion of issues with support.
Does this act apply to American citizens? Sen. Russ Feingold and most progressives say it does, definitely. If so, they would fall under the category of "unlawful enemy combatant," defined as "an individual engaged in hostilities against the United States who is not a lawful enemy combatant." This carefully worded, open-ended description could apply to almost anyone, but the answer isn't simply yes or no. The Act also refers to "lawful enemy combatants," generally defined as soldiers in regular armed forces or a militia engaged in hostilities against the U.S., wearing a recognizable symbol, carrying arms and observing rules of engagement. "Alien" is defined as a noncitizen of the U.S. Curiously, the term unlawful enemy combatant appears only in the definition and Subchapter I, which states the purpose of military commissions is to try "alien unlawful enemy combatants." So, the answer is no, right? Not so fast. The very next paragraph reminds you that "the authority in subsection (a) may not be construed to alter or limit the authority of the President under the Constitution and laws of the United States to establish military commissions for areas declared to be under martial law or in occupied territories should circumstances so require." The president has authority to establish this kind of court, and the secretary of defense may convene a commission. So, a citizen would have to live in an area under martial law to be subject to this Act, right? Maybe not. Unlike civilian criminal courts, which derive their authority, procedure and rules of evidence from statutes, commissions under this Act have procedures and evidentiary rules which are written by the secretary of defense and attorney general. They can do whatever they want. The answer is yes, a citizen may be subject to a military commission under this Act if that's what Rumsfeld and Gonzales decide.
Does that make the Act a departure from the past? Yes, and for other provisions, too. About that, the Act makes no pretense. Under the bill name is the statement, "to authorize trial by military commission for violations of the law of war, and for other purposes." Under 10 USC 47, sec. 836, art. 36, the president could prescribe rules for such tribunals consistent with those of criminal trials in U.S. district courts. That was in the past. Now the secretary of defense and attorney general, presumably with the advice and counsel of the White House, will make those decisions.
Is the Act riddled with other double-talk like that? You're darn tootin'. Rights it appears to extend to the accused in one place it strips away in another. It goes on for pages and pages about different crimes and how to arrive at the sentence. But Subchapter V begins with the express statement that the president or secretary of defense will set limits on punishments. So, as you can see, they control the rules of evidence, procedure and sentencing, and you don't need all those pesky laws at all. Likewise, there is included a long list of venues for review, rehearing and appeal, which looks good. But Subchapter VI allows the "convening authority" (the president and secretary) "to modify the findings and sentence of a military commission" at their sole discretion and prerogative. Bush wasn't joking when he said things would be easier if he were dictator. Previously a defendant could appeal all the way to the Supreme Court or apply for a writ of habeas corpus. Now appeals are limited to the U.S. Court of Appeals for the D.C. Circuit, if the convening authority consents, and you can forget about a writ of habeas corpus. No court can hear it provided the accused is in U.S. detention, legally, or awaiting that determination (Subchapter VII, sec. 6(e)(1)). Under Subchapter VI, sec. 950j, all rights to review are stripped away, saying the finding of the commission is final and conclusive. So, which is it?
Surely the Geneva Conventions can help. Forget it. Subchapter I states the accused may not invoke the Geneva Conventions as a source of rights at trial. The accused has no right to a speedy trial, no rights regarding self-incrimination or pretrial investigation. Subchapter VII states the president has authority to interpret the Geneva Conventions provisions and may do as he pleases, excluding a "grave breach." Although Subchapter III states no self-incriminating statements or testimony extracted by torture may be admitted, it's all right so long as the judge rules the evidence is "reliable," "probative" and serves "the interests of justice." Rulings and precedents from other commission trials may not be introduced so as to provide rights to the accused. The convening authority is prohibited from submitting a report evaluating the fitness of the commission's judge.
The transcript, formerly under the control of a judge advocate general, is now under the sole control of the commission's convening authority, which is also responsible for preparing the trial record. By contrast, you can purchase a copy of the transcript of any federal trial from the court reporter. In my opinion, this allows the convening authority to edit, rewrite or destroy the transcript. The following paragraph allows a "redacted" version of the transcript for the accused following sentencing.
Can the accused be tried en absentia? Yes, that's new. But only under circumstances not requiring a hearing on issues which support a not guilty plea, or for procedural matters, or if the secretary of defense says. Who needs laws or rules? This is a grand departure from the past. Furthermore, proceedings are closed to the public and when the accused isn't present, the record need not be made part of the transcript.
Does the Act legalize torture? You bet, and declares no action can be brought against the United States for death, collateral damage, property damage or injury, retroactive to November 26, 1997. Just in time for Thanksgiving.
Uranus, does the Act have a happy ending? Of course! Sec. 10 Severability: if any provision or amendment is found unconstitutional, the remainder of the Act is unaffected. When I read that, I laughed.
Uranus, my head hurts. What's going to happen with this? My head hurts, too. My opinion is the fate of this new law and the regime behind it will be like so many evil men and their bad deeds--that they will be swept away into history with the passage of time.
Unfortunately, real people suffer real injury and death on an ongoing basis because of these evil people and their bad deeds. It is unacceptable that any person subjected to a system of justice administered by the United States should be subject to any of these provisions, let alone all of them. Some people believe this one won't be on the books long; but, repealing a law in Congress or castrating it in court takes a lot longer than passing it, especially when despotism is so much in vogue.
Parting thought? Yes. George, Dick, Donald--may I call you by your first names, and may we be friends for a minute? If and when your wretched, murdering asses get hauled into court to answer for how you've treated detainees in your wars of aggression, you will need far more than this withering, shameful law as a defense. I'm thinking gigantic bribes, substantial incentives. And if you ever think of subjecting me to this incomprehensible law, you won't get a conviction because I'll die laughing.
Update: you can read part 1 here.