NDAA Signed – No Courts-Martial for Detainees
As everyone surely knows, President Obama signed the FY2010 National Defense Authorization Act on Wednesday. The Act contained provisions “upgrading,” my word, the Military Commissions Act of 2006, and thus does not utilize the UCMJ–it also does not utilize the military appellate courts as many of us had argued would be prudent, see link to Gene Fidell’s argument here. The Act does not put suspects on par with courts-martial in all respects, but it is an improvement.
The MCA amendments can be found here at Sections 1801-07. When GPO prints Public Law No. 111-84 we will give you the new link. Here is my least favorite provision.
‘‘§ 948d. Jurisdiction of military commissions
‘‘A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction.
I just don’t understand how, with all the rhetoric of the campaign, the provision permitting trial by military commission for offenses committed “before or on” Septemeber 11, 2001 remains. I won’t belabor the point. See my rant here.
Also, an interesing Q&A from NPR, here, with Charlie Swift’s take on the amnedments. Here is an excerpt:
On the legitimacy of military commissions:
A military judge recently remarked to me that as long as the process and rules of evidence [for military commissions] are inferior to federal courts, and cases are sent to commissions because of that perceived deficiency in evidence, the commissions will never be seen as legitimate.
If, instead of evidence or a perception of danger posed by the detainee, one bases the decision [on] what is the legally appropriate forum [to try detainees], the Law of War actually addresses the question.
Article 64 of the Fourth Geneva Convention dealing with occupations requires all persons detained by the occupying power to be tried by a non-political military tribunal sitting in the occupied territory.
So for the detainee that allegedly took part [in or] supported acts of sabotage and terrorism in Afghanistan, those persons should be tried exclusively in a military tribunal.
The problem with the commissions at the moment is that Congress politicized them by passing the 2006 Military Commissions Act after the Hamdan decision, rather than following the Supreme Court’s holding that the commission’s rules must comply with the longstanding Uniform Code of Military Justice, which is decidedly not a political court.
Good! Now we can litigate the ex post facto implications!