- you cannot challenge your arrest and detention through habeas corpus.
- you have no right to a speedy trial. Detention can last as long as the government wishes with no charges and no legal action taken at all.
- you will be assigned a military lawyer rather than choosing your own.
- prosecutors are allowed to use hearsay evidence against you.
- prosecutors are allowed to use "coercive techniques" (waterboarding, sleep deprivation, etc.) to get confessions that can be used in court against you.
- conviction will not require unanimous vote of the military officers on the board except in death penalty cases.
- appeals go through a second military commission rather than a civilian appeals court.
Fortunately, this system only applied to non-citizens. U.S. citizens apparently still get the Constitutional trial we all expect. So far. And this is how the MSNBC article describes the reasons Bush wants these privileges.
Written largely, but not completely, on the administration's terms, with passages that give executive branch officials discretion to set details or divert from its protections, the bill is meant to provide what Bush said yesterday are "the tools" needed to handle terrorism suspects U.S. officials hope to capture.This second class so-called judicial system supposedly only applies to non-U.S. citizens. Of course, naturalized U.S. citizens can have their citizenship stripped from them by the courts. It is only a small step to apply that same process to any other U.S. citizen.
For more than 57 months after the 2001 terrorist attacks on the World Trade Center and the Pentagon, Bush maintained that he did not need congressional authorization of such tools. But the Supreme Court decided otherwise in June, declaring the administration's detainee treatment and trial procedures illegal, and ruling that Bush must first seek Congress's approval. [Snip]
Tom Malinowski, the Washington office director for Human Rights Watch, said that Bush's motivation is partly to protect his reputation by gaining congressional endorsement of controversial actions already taken. "He's been accused of authorizing criminal torture in a way that has hurt America and could come back to haunt our troops. One of his purposes is to have Congress stand with him in the dock," Malinowski said. [Snip]
Under the new procedures, trials are supposed to be open, but can be closed to protect individuals or information expected to harm national security. [Can you say "Star Chamber?"] Defendants have a right to be present, unless they are disruptive, and have the right to examine and respond to the evidence against them. Proof of guilt must exceed a reasonable doubt. [Snip]
Anticipating court challenges, the administration attempted to make the bill bulletproof by including provisions that would sharply restrict judicial review and limit the application of international treaties -- signed by Washington -- that govern the rights of wartime detainees. The bill also contains blunt assertions that it complies with U.S. treaty obligations.
University of Texas constitutional law professor Sanford V. Levinson described the bill in an Internet posting as the mark of a "banana republic." Yale Law School Dean Harold Koh said that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done." [Snip]
Douglas W. Kmiec, a professor of constitutional law at Pepperdine University, said that Congress "did reasonably well in terms of fashioning a fair" set of procedures. But Kmiec and many others say they cannot predict how the Supreme Court will respond to the provision barring habeas corpus rights, which he said will leave "a large body of detainees with no conceivable basis to challenge their detentions."
There are other likely flashpoints. In the Supreme Court's June decision overturning previous administration policies, four members of the court who joined the majority opinion said that conspiracy is not a war crime. The new bill says that it is. [Snip]
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.[Bold face for emphasis by RB.]
But the article is quite correct when it points out that the Bush administration wants this law primarily so that Congress takes equal responsibility for the illegal treatment of detainees that the administration has been unilaterally applying without color of law since the invasion of Iraq. This makes the Republican Party officially the political party of Torture.