You Too Can Visit a Syrian Prison

Some of you may have heard about the Military Commissions Act recently passed by Congress. I get the feeling that most people don’t understand the import of this new law, so I read through it and plucked some pieces that struck me as significant. I’ll emphasize certain parts of the text and insert my comments. This is a long piece in comparison to my usual essays, but its importance justifies the length. This law puts the powers of a dictator in the hands of the president and places everyone (yes, including you) at risk of arbitrary perpetual imprisonment and torture.

S.3930
Military Commissions Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)
`CHAPTER 47A--MILITARY COMMISSIONS
`SUBCHAPTER I--GENERAL PROVISIONS
Sec. 948a. Definitions

`In this chapter:

`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Translation: There are no specific rules for determining who is an unlawful enemy combatant (UEC). One or more individuals chosen personally by G.W. Bush or Donald Rumsfeld can peg anyone on the planet, including you, with that legal definition.

Sec. 948b. Military commissions generally
(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

Translation: 57 years of international law on the treatment of prisoners pitched out the window.

Sec. 948d. Jurisdiction of military commissions

`(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Translation: If one or more people chosen by GW or Rummy say you are a UEC, kiss the U.S. court system goodbye.

SUBCHAPTER III--PRE-TRIAL PROCEDURE
Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

`(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

`(2) the interests of justice would best be served by admission of the statement into evidence.

Translation: If you were tortured into confessing before 12/30/05, but your interrogators were skilled enough not to leave marks, the officer in charge can use your confession if he wants to.

`(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

`(2) the interests of justice would best be served by admission of the statement into evidence; and

`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

Translation: They will now make you confess using methods that don’t leave marks.

`SUBCHAPTER IV--TRIAL PROCEDURE

Sec. 949a. Rules

`(a) Procedures and Rules of Evidence- Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with this chapter.

Translation: We will follow the rules unless we don’t want to.

`(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions:

`(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.

Translation: It’s my damn courtroom, I’m a reasonable person, and this evidence will put you on the gurney with the needles in your arm.

`(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.

Translation: The fourth amendment is now toilet paper.

`(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.

Translation: Torture is ok as long as it leaves no marks.

`(D) Evidence shall be admitted as authentic so long as--

`(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and

(See “It’s my damn courtroom,” above)

`(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.

Translation: “I think it sounds good. Do you guys think it sounds good? Good.”

`(E)(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.

Translation: We can piss on the rules of evidence if we tell you beforehand, but we don’t have to tell you if we decide that it is classified.

`(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed--

`(i) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or

`(ii) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Translation: Even if the evidence clears you, the judge can spike it if he wants to, especially if the trial is running behind schedule.

`Sec. 949t. Maximum limits

`The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense.

Translation: Hey, that’s a relief. You are protected by the moral conscience of G.W. Bush and Don Rumsfeld.

Sec. 949u. Execution of confinement

`(a) In General- Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement--

`(1) in any place of confinement under the control of any of the armed forces; or

`(2) in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use.

Translation: We can send you to a Syrian prison. If you’re lucky.

`(b) Treatment During Confinement by Other Than the Armed Forces- Persons confined under subsection (a)(2) in a penal or correctional institution not under the control of an armed force are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.

Translation: If you get Syria, you get Syria’s version of human rights.

SEC. 7. HABEAS CORPUS MATTERS.

Prediction: No it doesn’t

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Translation: Anyone who is not a U.S. citizen and is simply accused of being a terrorist can disappear into the system forever. Habeas Corpus, a legal right enjoyed by medieval English peasants, is simply the right to challenge your arrest and imprisonment, or the conditions of your imprisonment. GW’s personal tribunal doesn’t even have to determine that you are an enemy combatant – you can spend the rest of your life on the waiting list.

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

Translation: Abandon hope, all ye non-citizens who have entered here after 9-11.

SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.

(b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

(1) relates to the detention and interrogation of aliens described in such section;

(2) is grounded in section 2441(c)(3) of title 18, United States Code; and

(3) relates to actions occurring between September 11, 2001, and December 30, 2005.

Translation: There is a lot of verbiage in Section 1004 of the Detainee Treatment Act of 2005, but the upshot is immunity from prosecution for anybody, including G.W. Bush, for anything they did after 9-11 and before 2006.

SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

`(D) the term `serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves--

`(i) a substantial risk of death;

`(ii) extreme physical pain;

`(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

`(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

`(E) the term `serious mental pain or suffering' shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term `severe mental pain or suffering' (as defined in section 2340(2) of this title), except that--

`(i) the term `serious' shall replace the term `severe' where it appears; and

`(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term `serious and non-transitory mental harm (which need not be prolonged)' shall replace the term `prolonged mental harm' where it appears.

Translation: Waterboarding is ok with us, as are medium level beatings, short term starvation and controlled hypothermia…use your imagination, ok guys?

My comments are undeniably sarcastic in their tone, but the lowest form of humor is appropriate for the lowest form of law. This law is a rank violation of American justice equal to the Alien and Sedition Act or the internment of Japanese-Americans during WWII. Under this law, a few people handpicked by Bush or Rumsfeld can cause you to disappear merely by accusing you of a particular type of crime. You would have no legal recourse and, like the mostly innocent prisoners at Guantanamo, you could spend the rest of your life in legal limbo, waiting for your UEC determination. This needs to be repealed. Until repeal, we can’t call ourselves a nation of laws.