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Military Commissions Act

Military Commissions Act. Katja Bowman Dave Buffaloe Laura Crehan. Nuremberg Trials. Agenda. Overview of Provisions Legislative History Leading Cases Under the Statute Problems Issues Policy Proposal Suggestive Legislative Change. Overview of Provisions.

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Military Commissions Act

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  1. Military Commissions Act Katja Bowman Dave Buffaloe Laura Crehan Nuremberg Trials

  2. Agenda • Overview of Provisions • Legislative History • Leading Cases Under the Statute • Problems • Issues • Policy Proposal • Suggestive Legislative Change

  3. Overview of Provisions • Established Military Commissions to try alien enemy combatants • Prohibits combatants subject to the commissions from invoking the Geneva Convention • Outlines Commission Make-up • Prescribes trial procedures and post-trial procedures • Details triable offenses • Authorizes the President to interpret the Geneva Convention • Prohibits Torture • Prohibits judicial jurisdiction for application of writ of habeas corpus • Includes all alien combatants at Guantanemo Bay

  4. Legislative History • 10-31-2001 • M.O. issued by the President • Pertaining to the detention, treatment and trial of combatants • Military Commissions began in 2004 • Challenged by Rumsfeld v. Hamdan • Supreme Court ruled in Ramdan’s favor

  5. Legislative History • Military Commissions Act of 2006 • 9/22/2006 - Introduced in Senate • 9/28/2006 - Passed/agreed to in Senate: Passed Senate with an amendment by Yea-Nay Vote. 65 - 34. • 9/29/2006 - Passed/agreed to in House: On passage Passed by the Yeas and Nays: 250 - 170 • 9/29/2006 - Cleared for White House. • 10/10/2006 - Presented to President. • 10/17/2006 - Signed by President. • 10/17/2006 - Became Public Law No: 109-366

  6. Leading Cases Under the Statute • Rumsfeld v. Hamdan • June 29, 2006, Supreme Court issued decision • that the administration did not have authority to set up these particular military commissions without congressional authorization • David Matthews Hicks v. US • first person prosecuted under the MCA • Pre-trial agreement reached • 9 month sentence in exchange for guilty plea, remainder to be served in Australia Hamdan

  7. Leading Cases Under the Statute • Boumediene v. Bush • Whether the MCA validly stripped the federal court jurisdiction over habeas corpus filings by foreign citizens at Guantanemo Bay • Whether habeas corpus petitions demonstrate unlawful confinement • Al Odah v. United States • Should section 7(b) of the MCA, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending cases? • Supreme Court • Oral arguments heard on December 5, 2007 • Decision expected in Summer 2008

  8. Interest Group Positions • Amnesty International • Human Rights Watch • Human Rights First • The American Society of International Law • American Civil Liberties Union

  9. Interest Group Positions • Key issues with the MCA • Denial and/or restriction of habeas corpus/ unfair trial procedures • Torture • Violations of Geneva Conventions

  10. Interest Group Positions • General Issues with Habeas Corpus • MCA strips courts of judicial power • MCA favors prosecution • Other unfair trial procedures

  11. Interest Group Positions • General Issues between MCA and Geneva Convention • Judiciary branch did not interpret application of Geneva Conventions regarding “enemy Combatants” • In violation of: • International Law • Basic humane treatment

  12. Problems • Death Penalty Impact on National Security • Habeas Corpus • Fair and Impartial? • Classified Evidence • Evidence Gathered Under Torture • From Military to Federal to International Jurisdiction

  13. Death Penalty Impact on National Security • Many nations oppose the death penalty • Radical Islamic terrorist organizations glamorize martyrdom Secretary of State Colon Powell “it will reverse over a century of policy . . . and undermine the protections of the law of war for our troops, both in this specific conflict and in general; It has a high cost in terms of negative international reaction . . . ; [and] It will undermine public support among critical allies.”4 Powell also noted that applying the convention “maintains POW status for U.S. forces . . . and generally supports the U.S. objective of ensuring its forces are accorded protection under the Convention” (quoted in Greenberg and Dratel 2005, 124-25).

  14. Fair and Impartial? • Defendants provided “virtually the same rights as a military defendant under the UCMJ”

  15. Classified Evidence • Can evidence be provided without compromising classified sources and / or methods? • “Law Enforcement Sensitive” evidence is currently used in Federal Criminal Trials • Federal Witness Protection offered to classified sources? • “Intelligence” used for indicators and warnings is different from “evidence” used in criminal trials

  16. Evidence Gathered Under Torture • Not admissible in Federal, State, or Local Courts • Not admissible under international treaties • Studies have shown that it is unreliable • Should not be admissible in any criminal proceedings for detainees Demonstrators Simulate Waterboarding at the Justice Department, Washington DC 5 November 2007-REUTERS

  17. From Military to Federal to International Jurisdiction • Under the MTA, the only Federal Judicial Oversight of the process occurs if the defendants appeals go to the Supreme Court • There is no process to turn the judicial procedures over to an International Tribunal or the ICC

  18. International Courts • International Criminal Court • International Court of Justice

  19. International Criminal Court • US no longer a signatory of ICC due to: • ICC having unacceptable consequences for U.S. national security; • Is against American ideas of sovereignty, checks and balances, and independence • Prosecutor and Court are considered unaccountable • No U.S. President or advisor could be guaranteed safety from criminal proceedings • Can not be certain that judicial nominations are non-bias

  20. International Court of Justice • Not a valid option because: • Cases are between states • Also provides advisory opinions to UN specialized agencies

  21. UN Tribunals • Rwanda • Former Yugoslavia • Lebanon

  22. Policy Proposal • Set Time-Table from Capture Until Trial • Addresses Habeas Corpus • Same Rules of Evidence as Federal Trial • Evidence Under Torture Inadmissible • Establishment of U.N. Terrorism Tribunal • Addresses Larger Issue of National Security • Addresses Issue of Legitimacy

  23. Suggestive Legislative Change • All Non-State Actors Committing Inter-State Acts of Terrorism Will Be Prosecuted Under a United Nations Mandate and Tribunal • Nations’ Military, Intelligence, and Law Enforcement Entities must transfer custody within six-months of capture • Tribunal Members will have Security Clearances • Evidence Under Torture Will Not Be Admissible

  24. Bibliography How the Court Works International Court of Justice, [cited February 17 2007]. Available from http://www.icj-cij.org/court/index.php?p1=1&p2=6. Analysis of Proposed Rules for Military Commissions Trials Human Rights First, [cited February 17 2007]. Available from http://www.humanrightsfirst.info/pdf/07125-usls-hrf-rcm-analysis.pdf. The United Nations, [cited February 17 2007]. Available from http://www.un.org. Q and A: Military Commissions Act of 2006 Human Rights Watch, 2006 [cited February 17 2007]. Available from http://hrw.org/backgrounder/usa/qna1006/. United States of America: Military Commissions Act of 2006 - Turning Bad Policy into Bad Law Amnesty International, 2006 [cited February 17 2007]. Available from http://www.amnesty.org/en/library/asset/AMR51/154/2006/ddb3cdee-a2de-11dc-8d74-6f45f39984e5/amr511542006en.pdf. Legislative Priorities: Military Commissions Act American Civil Liberties Union, 2007 [cited February 17 2007]. Available from http://www.aclu.org/pdfs/legpriorities_2007.pdf. Bolton, John R. The United Sates and The International Criminal Court United States Department of State, 2002 [cited February 17 2007]. Available from http://www.state.gov/t/us/rm/13538.htm. Cerone, John. The Military Commissions Act of 2006: Examining the Relationship between the International Law of Armed Conflict and U.S. Law The American Society of International Law, 2006 [cited February 17 2007]. Available from http://www.asil.org/insights/2006/11/insights061114.html.

  25. Bibliography • http://www.answers.com/topic/augustin-bizimana • After Guantanamo, A Special Tribunal for International Terrorist Suspects. Ken Gude, Center for American Progress. April 2006. • http://www.amazingteacher.com/shows/1topsecret.asp • http://www.arabictab.com/ • http://www.cbc.ca/news/background/balkans/milosevic_timeline.html • http://en.wikipedia.org/wiki/Al_Odah_v._United_States • http://en.wikipedia.org/wiki/Boumediene_v._Bush • http://en.wikipedia.org/wiki/Lakhdar_Boumediene

  26. Bibliography • http://encarta.msn.com/media_701765067_761558094_-1_1/International_Court_of_Justice.html • http://www.globalpolicy.org/intljustice/icc/index.htm • http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN03930:@@@L&summ2=m& • http://www.iisd.ca/climate/sb22/images/generic/UN-LOGO.gif • http://www.msnbc.msn.com/id/14122554/ • http://www.nancarrow-webdesk.com/warehouse/storage2/2007-w44/img.51724.html • http://www.un.org/law/ • http://www.washingtonpost.com/wp-dyn/content/article/2008/02/21/AR2008022102662.html

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