From the October 2006 Idaho Observer:
The Military Commissions Act and the "Law of War"
by Hari Heath
Perception is reality, so they say, and that may be the biggest problem in fully understanding the "Military Commissions Act of 2006," recently passed by Congress. How we read this bill, and more importantly, how its meaning should, could and will be construed and implemented is paramount to the future condition of humanity.
The perception of the bill’s contents will be as variable as the people who read it. Someone who believes in the current political system can see it as Congress finally giving the military authority it needs to try the terrorists they have already, or will soon, capture in the war on terror. Others more biased by the experience of the corrupted forces of government may see it as the final unveiling of a military occupational government, unfettered by nuisances such as the Constitution and our rights. Or, if we can stretch our perception with some positive thinking in these dark times, it could be the answer to how we can summarily rid America of its greatest threat: The "unlawful, enemy combatants" in Congress, the executive branch, the judiciary, the administrative realms and, by logical extension of fascistic reality, their corporate "co-belligerents."
Various initial reports have alleged horrific contents: Rumors of authorizing torture, unlimited detainment of American citizens, unwarranted wiretaps and surveillance, military trials and executions of the citizenry, to name a few. From my reading of this bill so far, I have not yet found such claims to exist in clear, plain language. Again, perception is reality and what is not clear and in plain language could still end up being policy, procedure and practice.
The Fast Track
What is the Military Commissions Act? Well greased on the fast track, Senate Bill 3930 was introduced September 22, 2006. An Amendment was proposed by Senator Specter (R-PA) on 9-27 to strike the provision preventing habeas corpus review, but that was voted down the following day.
On 9-28 amendments to provide for congressional oversight of certain Central Intelligence Agency programs; to provide for the protection of United States persons in the implementation of treaty obligations; and a sunset clause for December 31, 2011, were also rejected.
S 3930 passed the Senate 65-34 and was received in the House by 7:28 p.m. The House version, HR 6166, was passed the following afternoon by a vote of 250-170. The president then signed it into law on October 17, 2006. White House press Secretary Tony Snow said it may take a month or more to get the military commissions operational.
On its’ face
On its’ face, the act will "authorize trial by military commission for violations of the law of war," of anyone "who is not a lawful enemy combatant," or more specifically: "This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission."
If our thinking follows the paradigm that Arab terrorists attacked us on 9/11; we subsequently invaded Afghanistan, captured these terrorists and have held them indefinitely in Guantanamo Bay, for want of a procedure to bring these haters of America and her freedoms to justice, now we have such a procedure in the Military Commissions Act.
But if we read deeper into the bill, the alarming part is what may be meant by language, which is inconclusive at best. It was probably meant to be clearly unclear, leaving wide room for interpretation by those unaccountable "perpe-traitors" who will find such linguistics useful for their purposes. A good example comes from the Act’s stated purpose: To conduct trials "for violations of the law of war and other offenses triable by military commission."
The "law of war" is not defined in the Act. What is the law of war? Is it the same as the law of the jungle? How is such a "law" violated? Where is it codified so that a violator might know what he is violating? Isn’t "war" a condition of lawlessness? Yet, military commissions will soon be imposing punishment on violators of the "law of war."
Secondly, are there limits to "other offenses triable by military commission?" The Act later lists many crimes, which are triable by military commission "under this chapter at any time without limitation," but no language limits a commission to the trial of only those crimes. How far can a commission go? Who will stop them? Donald Rumsfeld?
Who is the target?
Who will this new chapter in military law target? The Act defines "unlawful enemy combatant" as 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."
Who is a "lawful enemy combatant?"
"The term ‘lawful enemy combatant’ means a person who is—
‘(A) a member of the regular forces of a State party engaged in hostilities against the United States;
‘(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
‘(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."
In reading law, simple words can have great meaning. The "and" in subsection (B) mandates that all of the conditions listed must be fulfilled to meet the definition. If a militia member does not belong to a State party, have a "responsible command," a "fixed distinctive sign," is concealing their weapons OR is failing to abide by the law of war, whatever that is, they are, by definition, an "unlawful enemy combatant," triable by military commission.
By extension, can Americans who seek to secure their free state by keeping and bearing arms against unlawful, Constitution violating, U. S. government forces be declared "unlawful enemy combatants," for defending their country, home and family?
By default, anyone who is not a "lawful" enemy combatant, as defined, becomes an "unlawful" enemy combatant, subject to trial by military commission.
Alien to what?
The Act also defines "alien": "The term ‘alien’ means a person who is not a citizen of the United States."
As many of us who have been involved in sovereignty issues know, a "citizen of the United States" is Fourteenth Amendment federal citizenship which abrogates the status of the sovereign individual; a 14th Amendment citizen is, in essence, a feudal federal slave citizen.
Are those of us who choose to be Americans and not federal citizens to be tried by military commission if we engage in or support "hostilities" against the federal regime? The Act does not define hostilities. What exactly will these unaccountable military commissions construe as "hostile" conduct?
Not even military justice
The Act states military commissions will be exempted from following the Uniform Code of Military Justice, especially as it relates to speedy trial, compulsory self-incrimination and pretrial investigation. In a strange twist, the Act claims to abide by the Geneva Convention, yet denies its purposes: "A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions…No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights."
How can this be?
Ex post facto jurisdiction without venue
The Act violates the Constitution with an ex post facto rollback of criminal liability to September 11, 2001. It also claims to create jurisdiction for the commissions, without any mention of venue. Every other "regularly constituted court" exercises its jurisdiction within a specified "venue" or place such as a county, district, state or nation. Are we to assume, as they likely will, that their venue is anywhere in the world that the U.S. is "attacked," as we continue on our course of invading other people’s countries? Has Congress left out any mention of venue because there really is no "place" for this kind of legislation?
The president is empowered to establish military commissions. After that, the Secretary of Defense is in full command of the operation: "Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose…Any commissioned officer of the armed forces on active duty is eligible" to sit on a military commission.
The Secretary is empowered to prescribe the rules for procedure, evidence, pretrial, trial and post-trial procedure as well as detailing military judges, trial counsel and defense counsel. Judge, jury (commissioners) and executioner, the Secretary of Defense is empowered to mete out the punishment:
"A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war."
"The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense."
"Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement—
(1) in any place of confinement under the control of any of the armed forces; or
(2) in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use."
But the powers of the Secretary of Defense don’t end here. Once you are "convicted" by a military commission and sent to a gulag "which the United States may be allowed to use," have no fear: "The Secretary shall assign appellate military judges to a Court of Military Commission Review."
After being denied any relief there, you may then finally apply to a civilian court: "United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission…The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted. The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28."
There are a few "rights" afforded by this Act. "No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense;
"No person shall be required to testify against himself" and "a statement obtained by use of torture shall not be admissible."
"The accused shall be permitted to present evidence in his defense, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing...the accused shall be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d…The accused shall receive the assistance of counsel…The accused shall be permitted to represent himself, as provided for by paragraph (3)."
Paragraph (3) reads: "The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel—
(A) is a United States citizen;
(B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
(D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
Additionally, "if the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel."
What will the hourly rate be for an attorney with "secret" or higher security clearance and how effective will they be if they have contracted with the military tribunal to "comply with all applicable regulations or instructions?"
A regime unto itself
"The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President. Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."
Such "absolute immunity" is a synonym for absolute corruption.
Crimes triable by military commissions are noteworthy because most, if not all of them, describe the conduct of the U.S. military in Iraq and elsewhere. Listed in the Act are the following crimes subject to adjudication by a commission:
Murder of protected persons; attacking civilians; attacking civilian objects; attacking protected property; pillaging; denying quarter; taking hostages; employing poison or similar weapons; using protected persons as a shield; using protected property as a shield; torture; cruel or inhumane treatment; intentionally causing serious bodily injury; mutilating or maiming; murder in violation of the law of war; destruction of property in violation of the law of war; using treachery or perfidy; improperly using a flag of truce; improperly using a distinctive emblem; intentionally mistreating a dead body; rape; sexual assault or abuse; hijacking or hazarding a vessel or aircraft; terrorism; providing material support for terrorism; wrongfully aiding the enemy; spying; and conspiracy.
A military commission may also directly try and impose punishment for perjury, obstruction of justice and contempt.
There are some limitations to the type of punishment allowed by this Act:
"Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter."
While this Act destroys some of the protections secured since the Magna Charta, at least we aren’t devolving all the way back to the Inquisition and its torturous history.
But Congress has given carte blanche authority for the extent of punishments and the authority to carry them out: "The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense."
The Act continues: "The Secretary of Defense is authorized to carry out a sentence imposed by a military commission under this chapter in accordance with such procedures as the Secretary may prescribe…If the sentence of a military commission under this chapter extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit."
There is no statutory upper limit of what sentences may be imposed—that will soon be set by the regulatory whims of Secretary of Defense Donald Rumsfeld. After that social deviant sets his limits, each commission is then allowed to fill in the blanks on a case-by-case basis—without mercy.
The Act claims to fulfill U.S. obligations to the Geneva Convention while prohibiting such international laws from being considered as a basis for interpreting them: "The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441."
This effectively and specifically leaves such interpretation solely in the hands of the president: "As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. The President shall issue interpretations…by Executive Order published in the Federal Register."
This fully circumvents the separation of powers principle enshrined in the Constitution by making the president a legislator, executor and judicial interpreter.
As an "Implementation of Treaty Obligations," the Act adds a new subsection (d) to 18 USC 2441, which specifies and defines war crimes. 18 USC 2441 can essentially be read as applicable to: "Whoever, whether inside or outside the United States, commits a war crime…[in which] the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States…"
That is a rather large claim of criminal liability:: As long as a U.S. person was involved, such a war crime can be committed by anyone, anywhere. Such a violation is a standard civilian crime, triable in federal courts, not an offense triable by the new military commissions, but the amended criminal code now defines the following "prohibited conduct":
"Torture; cruel or inhumane treatment; performing biological experiments; murder; mutilation or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and taking hostages."
Much can be said to exemplify current government conduct as violative of this new subsection, but they specifically exempt themselves "with respect to— (A) collateral damage; or (B) death, damage, or injury incident to a lawful attack."
The end of habeas corpus
"No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
"…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."
Will this end the right of habeas corpus as we are sitting in a Halliburton detention center "awaiting such determination?"
On the same basis, the new statute seeks to protect the perpe-traitors from any liability: "…no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
Congress again violates the ex post facto law provision of the Constitution by claiming retroactive authority "…shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001."
Unlimited detainment of Americans?
Some have claimed this bill authorizes the unlimited detainment of Americans and they cite Section 950v (b)(26): "WRONGFULLY AIDING THE ENEMY- Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct."
Such language could have many interpretations and may result in the unlimited detainment of Americans if they (1) can be defined as an "unlawful enemy combatant" who (2) breaches an unspecified "allegiance or duty to the United States" and (3) " aids an enemy of the United States, or one of the co-belligerents of the enemy."
Under that scenario, there are almost no limits to what can happen to a person brought before a military commission, since they "shall be punished as a military commission under this chapter may direct."
But can we say we are all about to be rounded up and sent to Camp Halliburton, based on the plain and clear language of the bill? I don’t think so. Ultimately, such interpretation will be left up to President Bush and Donald Rumsfeld—a scary thought.
The rumors of this bill authorizing torture, unwarranted wiretaps and surveillance, do not appear to be true. The bill actually adds a new section making torture a crime. Both reading it and doing a text search did not turn up any provisions for wiretapping or surveillance. But military trials, detention and executions of the citizenry are now a distinct possibility.
A glimmer of hope
Every military person gave an oath to support and defend the Constitution from all enemies foreign and domestic. It is clear to any with eyes to see, that our greatest enemies are domestic ones who have collectively usurped some of the highest offices in the land. Murder, treason and torture are but a few of the high crimes, which can be proved against them. By these facts alone, they are definitely "unlawful enemy combatants" who have been "wrongfully aiding the enemy."
The criminals in Congress and elsewhere, may not have realized it as this Bill slid down the fast track, but they have authorized the means by which they can finally be brought to justice—if there are sufficient people in the military who mean to keep their oath.
But even in this perilous moment, let us be patient. Wait until Rumsfeld fully implements this Act. When it is fully operational, even tested a few times, then those who wish to honor their oath must act.
Under "Operation Restore," Rumsfeld, "President" Cheney, "Acting" President Bush, the cabinet and the Congress, along with the judiciary, can be arrested, detained, tried by military commission, sentenced after conviction and be summarily "punished as a military commission under this chapter may direct."
After the operators of the Diebold vote counting scam have also been arrested, the American people can have an election to fill the offices of the republic and begin the long process of restoring the republic by civil means.
This, of course, is a glimmering fantasy of hope: That honorable men and women in uniform actually understand and plan to keep their oath. Reality reminds us that Pentagon employees have 3 trillion dollars of "missing" credit card debt, unfathomable black budgets and corruption that even the GAO can’t keep up with.
Sad facts of our times
Corruption is nothing new to the realms of government. The Military Commissions Act is only evidence that we are now on the verge of progressing to the point where Hitler and his supporters (like the Bush’s grandfather Prescott) left off.
Evidence of controlled demolitions at the World Trade Center; lack of evidence that an airliner hit the Pentagon; and a veritable mountain of details are erupting to show that the most provable explanation of September Eleventh is that it was an inside job—our modern-day Reichstag.
Like a sand castle below high tide, the official version of the events of 9/11 is about to disappear as the sea of scrutiny washes in. The official hoax of Iraqi WMDs has long since been turned back to sand on the beach. Both of these fallacious fabrications are the foundations for the wars being used to cement the power of the current administration.
The reputable Johns-Hopkins University now estimates that such infamous war criminality has killed over 655,000 people in Iraq alone. At least one carrier group is now steaming towards Iran for yet another unilateral confrontation between U.S. airpower and a civilian population.
The dissidents of the world who oppose the policy of "U.S. Empire by perpetual strike force" may soon be compelled to abandon their general policy of non-violent opposition.
Thus, the Military Commissions Act has become a necessity. Guantanamo Bay has simply run out of room and Cheney’s Halliburton already has the contract to provide the solution. Every commissioned military officer is now authorized to sit in judgment of "unlawful enemy combatants," regardless of race, creed or national origin.
To whom it may concern:
• If you are an American who understands the difference between the sovereign status of your birthright and the enfranchised federal serf status of a U. S. citizen, you should be concerned.
• If you are a militia member or organized resistance fighter who doesn’t wear a uniform or follow the command of a "State party," you should be concerned.
• If you live in a police state where the police can attack you and then charge YOU with assaulting an officer, and you aren’t sure what the undefined meaning of "hostilities" is, you should be concerned.
• If you thought the Uniform Code of Military Justice was bad, just wait until you are denied even that.
• You are rightfully concerned if you wonder how a "regularly constituted court" can exist without even a hint of venue.
• If you thought habeas corpus was already statutorily strangled until it was gasping for breath, it may concern you that it is now hanging lifeless.
• If you never thought you would need the Geneva Convention, that’s OK, because now you can’t use it.
• If you now understand that one man has been given the power to regulate military tribunals which judge matters of life and death, under the law of war; that he regulates the rules of procedure and evidence; that he details the judges, trial counsel and defense counsel; that he controls the appellate procedure and judges; that he prescribes the severity of punishment with almost no limits; that he may execute sentences "in any place of confinement…which the United States may be allowed to use;" and if you now understand that Donald Rumsfeld is that one man, you should be concerned.
If you are an American, you better be concerned enough to find out if you have any "allegiance or duty to the United States," and whether or not you are giving any aid to an enemy of the United States, or even a co-belligerent of an enemy, because, "Any person subject to this chapter…shall be punished as a military commission under this chapter may direct."
We have entered a new regime, and their law is the "Law of War."
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