Post by Anja Nieser on Oct 1, 2006 6:34:53 GMT -5
Many Rights in U.S. Legal System Absent in New Bill
The military trials bill approved by Congress lends legislative support
for the 1st time to broad rules for the detention, interrogation,
prosecution and trials of terrorism suspects far different from those in
the familiar American criminal justice system.
President Bush's argument that the government requires extraordinary power
to respond to the unusual threat of terrorism helped him win final support
for a system of military trials with highly truncated defendant's rights.
The United States used similar trials on just four occasions: during the
country's revolution, the Mexican-American War, the Civil War and World
War II.
Included in the bill, passed by Republican majorities in the Senate
yesterday and the House on Wednesday, are unique rules that bar terrorism
suspects from challenging their detention or treatment through traditional
habeas corpus petitions. They allow prosecutors, under certain conditions,
to use evidence collected through hearsay or coercion to seek criminal
convictions.
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.
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.
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.
Now Bush has received much of the authority he desired from party
loyalists and a handful of Democrats on Capitol Hill. "The American people
need to know we're working together," Bush told senators before
yesterday's vote.
But Tom Malinowski, the Washington office director for Human Rights Watch,
said 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.
The bill contains some protections unavailable to the 8 Nazi saboteurs who
came ashore in the United States in 1942 and were captured 2 weeks later.
6 were executed that year after a closed military trial on the fifth floor
of Justice Department headquarters. That proceeding was upheld by the
Supreme Court in a decision it explained 2 months after the
electrocutions.
Under the new procedures, trials are supposed to be open, but can be
closed to protect the security of individuals or information expected to
harm national security. Defendants have a right to be present, unless they
are disruptive, and a right to examine and respond to the evidence against
them. Proof of guilt must exceed a reasonable doubt.
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.
"This is a full-employment act for lawyers," said Deborah Perlstein, who
directs the U.S. Law and Security Program at the New York-based nonprofit
group Human Rights First.
Former White House associate counsel Bradford A. Berenson, a supporter of
the bill and one of the authors of the rules struck down by the Supreme
Court, agreed. "Some of the most creative legal minds are going to be
devoted to poking holes in this," he said.
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."
In contrast, Douglas W. Kmiec, a professor of constitutional law at
Pepperdine University, said 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, 4 members of the court who
joined the majority opinion said conspiracy is not a war crime. The new
bill says it is.
Georgetown University law professor Neal Katyal said the bill's creation
of 2 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.
"If you're an American citizen, you get the Cadillac system of justice. If
you're a foreigner or a green-card holder, you get this beat-up-Chevy
version," he said.
(source : The Washington Post)
*****************
The military trials bill approved by Congress lends legislative support
for the 1st time to broad rules for the detention, interrogation,
prosecution and trials of terrorism suspects far different from those in
the familiar American criminal justice system.
President Bush's argument that the government requires extraordinary power
to respond to the unusual threat of terrorism helped him win final support
for a system of military trials with highly truncated defendant's rights.
The United States used similar trials on just four occasions: during the
country's revolution, the Mexican-American War, the Civil War and World
War II.
Included in the bill, passed by Republican majorities in the Senate
yesterday and the House on Wednesday, are unique rules that bar terrorism
suspects from challenging their detention or treatment through traditional
habeas corpus petitions. They allow prosecutors, under certain conditions,
to use evidence collected through hearsay or coercion to seek criminal
convictions.
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.
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.
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.
Now Bush has received much of the authority he desired from party
loyalists and a handful of Democrats on Capitol Hill. "The American people
need to know we're working together," Bush told senators before
yesterday's vote.
But Tom Malinowski, the Washington office director for Human Rights Watch,
said 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.
The bill contains some protections unavailable to the 8 Nazi saboteurs who
came ashore in the United States in 1942 and were captured 2 weeks later.
6 were executed that year after a closed military trial on the fifth floor
of Justice Department headquarters. That proceeding was upheld by the
Supreme Court in a decision it explained 2 months after the
electrocutions.
Under the new procedures, trials are supposed to be open, but can be
closed to protect the security of individuals or information expected to
harm national security. Defendants have a right to be present, unless they
are disruptive, and a right to examine and respond to the evidence against
them. Proof of guilt must exceed a reasonable doubt.
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.
"This is a full-employment act for lawyers," said Deborah Perlstein, who
directs the U.S. Law and Security Program at the New York-based nonprofit
group Human Rights First.
Former White House associate counsel Bradford A. Berenson, a supporter of
the bill and one of the authors of the rules struck down by the Supreme
Court, agreed. "Some of the most creative legal minds are going to be
devoted to poking holes in this," he said.
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."
In contrast, Douglas W. Kmiec, a professor of constitutional law at
Pepperdine University, said 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, 4 members of the court who
joined the majority opinion said conspiracy is not a war crime. The new
bill says it is.
Georgetown University law professor Neal Katyal said the bill's creation
of 2 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.
"If you're an American citizen, you get the Cadillac system of justice. If
you're a foreigner or a green-card holder, you get this beat-up-Chevy
version," he said.
(source : The Washington Post)
*****************