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Friday, September 29th 2006

Finally Those Terrorists Get What's Coming…Or Something

So many mixed feelings on the newly passed bill authorizing military tribunals for enemy combatants. (Text of HR 6166)

At least these guys aren’t going to be held without ‘charges’ and tortured behind close doors (no, now we do that out in the open since it is endorsed by Congress). However, it fails any libertarian’s civil liberty dreams by large margains.

Liberal op/eds abound on the issue, including multiple essays in the Washington Post basically anouncing the passage of this bill as the end of the world. First, Andrew Cohen says,

Of all the stupid, lazy, short-sighted, hasty, ill-conceived, partisan-inspired, damage-inflicting, dangerous and offensive things this Congress has done (or not done) in its past few recent miserable terms, the looming passage of the terror detainee bill takes the cake.


The legislation…appears to allow illegally-obtained evidence– from overseas or right here at home– to be used against enemy combatants (which gives you an idea of where this Congress really stands on the National Security Agency’s domestic spying program). And wait, there is this: the Administration’s horrible track record when it comes to identifying “enemy combatants” and then detaining them here in the States. Two of the most famous ones, Yaser Hamdi and Jose Padilla, both ended up having the highest courts in our land back up their legal claims, which is why the government had to release Hamdi outright and then turn Padilla over to the regular civilian courts (where he is a defendant in a weak case against him).

Then a Post staffer analysizes the bill and doesn’t give it a ringing endorsement,

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an “unlawful enemy combatant,” the bill empowers the executive branch to detain indefinitely anyone it determines to have “purposefully and materially” supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.

At the same time, the bill immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of detainees who the military and the CIA captured before the end of last year. It gives the president a dominant but not exclusive role in setting the rules for future interrogations of terrorism suspects.


Many constitutional experts say, however, that the bill pushes at the edges of so much settled U.S. law that its passage will not be the last word on America’s detainee policies. They predict it will shift the public debate to the federal courts, a forum where the administration has had less success getting its way on counterterrorism policies.


Georgetown University law professor Neal Katyal said the bill’s creation of two systems of justice — military commissions for foreign nationals and regular criminal trials for U.S. citizens — may violate the Constitution’s 14th Amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction.

I’m sure we can expect more than just a 14th amendment challenge to this bill. Other liberal opines on the bill include Democratic Senate Minority Leader Reid’s statement, and a notable op/ed in the Los Angeles Times by Yale law professor Bruce Ackerman.

An Artist’s Rendition of Senator Reid

Despite joking around, I’m extremely concerned about this bill. I will say this, at the least, as Senator Reid points out, I have no idea why this amendment wasn’t reasonable:

Senator Byrd offered an amendment to sunset military commissions so that Congress would simply be required to reconsider this far-reaching authority after five years of experience. Even that amendment was rejected.

Just set it up so the bill has to be reauthorized in five years or it expires. We need to realize that legislation, even when it proves to be a terrible decision (as I think this bill will), is much more difficult to remove than it is to authorize.

To give equal time, conservative voices naturally play this as merely certifying what has always been the norm,

[T]he United States will not change 200+ years of history and treat captured enemies as citizens. We will not suddenly decide that foreign terrorists captured abroad now should have the same rights as the American citizens and residents they try mightily to murder in large numbers. We will not shy away from using the successful methods used to prevent eight separate attacks on our country by eschewing the kinds of techniques our own Special Forces troops endure during their training.

There is some credence to this. For instance during World War II, eight Nazi saboteurs who landed on American soil, were captured, defined as enemy combatants, brought quickly before a military tribunal (which met in secret no less) and six were sentenced to death. The entire process from trial to the chair (including appeals – the Supreme Court held a special session to hear the last appeal) took just longer than a month (!)