Schonberg on your newly restricted rights

From the SLU listserv comes this comment by Prof. Karl Schonberg. Karl looks closely at the language of the law and its consequences for the rights of US citizens.

Under this law, civilian U.S. citizens can potentially be tried before military courts. Some of the language in this law refers only to “aliens,” but the definition of “unlawful enemy combatants” does not. Section 3(948a)(1)(A) states that “the term `unlawful enemy combatant' means… a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States…” Section 3(948d)(c) specifies that the President or Secretary of Defense will choose tribunals to determine who is an unlawful enemy combatant, and the findings of these tribunals will be "dispositive for purposes of jurisdiction for trial by military commission." On this issue see also Yale law/political science professor Bruce Ackerman's essay in the L.A. Times. Military commissions can assign sentences up to and including death (3(948d)(d)).

In these military courts not all of the protections guaranteed to U.S. citizens under the Constitution will apply. For example:

Evidence seized without a warrant will be admissible: “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” (3(949a)(2)(B)).

Evidence gained through coercion will sometimes be admissible: “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…” (3(949a)(C)).

Hearsay evidence will sometimes be admissible: “…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…” (3(949a)(b)(2)(E)(i)).

Military judges are also given wide latitude in deciding, among other things, what evidence defendants will be able to see (3(949d)(f)), and whether there will be public access to trials (3(949d)(2)).

Rules governing defense counsel’s right to bring witnesses and evidence are to be “provided in regulations prescribed by the Secretary of Defense” (3(949j)(a)). The Secretary of Defense and Attorney General also have the power to determine “pretrial, trial, and post-trial procedures, including elements and modes of proof…” (3(949a)(a)).

Non-U.S. citizens, including legal residents, may be jailed indefinitely without charge: “7(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus [or any other action, 7(e)(2)] led by or on behalf of an alien detained by the United States [as an enemy combatant].”

The president will decide when and how the Geneva Conventions apply, if at all: “ …the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions…” (6(a)(3)A).

To say that I find this language troubling would be a vast understatement. I will be at the meeting next week to discuss these issues and our response to them.