My take on H.R. 6166 Authorization of Military Commission

[izzybeans]

I'll get perhaps the most controversial subject matter out of the way. Section 501 of the Domestic Security Enhancement Act (Patriot Act II), known as the "Expatriation of Terrorists" expands the conditions of expatriation to include supporting groups hostile to the United State, alongside an intent to rescind one's U.S. citizenship.http://www.publicintegrity.org/docs/PatriotAct/story_01_020703_doc_1.pdf Intent need not be expressed, but can be inferred from conduct. However, this act was not passed and despite elements of this proposed act being tacked on to other bills, the redefinition of expatriation seems to have never occurred. I've searched and searched trying to find a bill to tell me otherwise. The most recent discussion of this act I can find is here; http://www.publicintegrity.org/report.aspx?aid=779

For me the conclusion that the authorization of military commission will somehow get rid of Habeas Corpus is premature. However if this idea of extending the definition of expatriation found in the draft legislation mentioned above does occur then, any american citizen will be subject to commission review and fall under the jurisdiction of an office that should be of grave concern. I will gladly harden my stance on this matter if and when I find a link to say that expatriation has been redefined via legislation in the past three years. But note this, the worry about the loss of Habeas Corpus is valid, especially when and if the expatriation provision contained in the proposed legislation above passes. The iceberg will surely have sunk the titanic known as liberty; because the end run around Habeas Corpus is complete. For wingnuts who need to know, here is the original Habeas Corpus Act we borrowed from the British Parliament. http://www.constitution.org/eng/habcorpa.htm

As of right now, it seems the only concession the Bush Administration has had to make is that they can not arbitrarily whisk away American citizens. Anyone else is okay so long as the Secretary of Defense's commission argues they provided material or immaterial support to non-state sanctioned anti-american groups.

With that out of the way the concerns I have and feel we all should have can be focused on two areas. One, as Salon pointed out in their analysis on this act, the legislation sets up fuzzy conditions, contradictory definitions, and abstract standards. Secondly, this entire act creates an non-reviewable jurisdiction for which the Secretary of Defense can arbitrarily (no checks, no balances) administer justice under the direction of the Executive. In fact the Secretary of Defense has full discretion from top-to-bottom on both the structure and practice of the commissions. That is except for one, the secretary, once establishing the rules, procedures, and the personnel for the commission can not interfere, lest he/she be punished by law.

Of all the vague language in this act, there is one that is quite clear. This concerns the admissibility of evidence obtained via torture.

948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

“(a) In general.—

“No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

“(b) Exclusion of statements obtained by torture.—

“A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.

“(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005.—

“A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—

“(1)

“the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

“(2)

“the interests of justice would best be served by admission of the statement into evidence.

“(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005.—A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—

“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

“(2)

“the interests of justice would best be served by admission of the statement into evidence; and

“(3)

“the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

It is quite clear, before the Defense Treatment Act the judges discretion is sole arbiter of admissibility. Afterward, it is subject to the definitions of cruel, unusual, or inhumane treatment, which are subject to the reservations and interpretations of the executive. Couple this with the vague wording and you have a the type of executive discretion Justice Alito loves to call Unitary; because the jurisdiction set up is both non-reviewable by the judicial branch, nor subject to international law. "Unlawful combatants" are defined as outside the jurisdiction of the Geneva Conventions, which is stated clearly beginning in section 5 near the end of the legislation. Whether they are tortured or not depends on the whims of executive signing statements and official reservations to treaties. This is just the sort of Unitary Executive neo-cons dream of.

Put more precisely, this is exactly the type of arbitrary justice that the Bush admin. has been seeking since the "torture memo". If there were any concessions it is that expatriation can not occur in ways not already codified into law. They have been seeking to establish a new legal category that would exist outside our treaty obligations and the rhetoric they have used on this subject is clearly codified into this legislation. It sets up a form of justice not seen in our country since we were a colony. And it creates the possibility through future legislation that American citizens can fall within this arbitrary jurisdiction. The tyranny of a unitary executive is no less than that of a king and his court.

Given that this new, "imperial jurisdiction", can not be subject to judicial review, like proceedings following the UCMJ can be, it establishes a military dictatorship within the executive branch. Why? I'm sure this is every right-wingers question (the confused, "why"). Because when it comes to all the layers of democratic control we have set up in our country one thing can be said, nothing is totally out of reach for the people. Injustices can be won through democratic struggles. We have representation even with unfair taxation. To the contrary, this system establishes a governance structure, controlled by the executive branch, via the military, that should be every conservative's nightmare. It not only violates the spirit of liberty set up by our constitution and international law, it establishes a very slippery slope straight into the military worshiping souls of old school fascists (and I'm referencing the authoritarian structure and military domination of this jurisdiction. That is not some ham-handed reference to Nazis).

For the time being I would suggest pointing focusing on the power grab itself first. This must be stopped now. We can not afford to sit and fit the expatriation concern I raised at the beginning later. If they redefined it in the way proposed by Ashcroft's justice department in 2003, then it can be arbitrarily applied to anyone not in lock step with the government.

First they came for the terrorists, and i did nothing. Then they came for the leftists, and I laughed. But then they came for me, and I realized what a shortsighted buffoon I really am. Now there is no one to represent me. I don't even know what country I have been disappeared to. (My RENDITION of this EXTRAORDINARY world)

Supporters of this legislation are appeasing the only enemy of liberty present on our soil; a unitary executive and his merry little man, the Secretary of Defense.

link to act

http://thomas.loc.gov/home/gpoxmlc109/h6166_ih.xml#toc-HF0019D1E008C4705B214433BDB54DB27