S3930SEP29

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Week Ending September 29, 2006

S.3930 A bill to authorize trial by military commission for violations of the law of war, and for other purposes.

This bill is identical to the House bill recently passed on the same subject. The House bill, HR 6166, was considered without the option of amendment. The Senate bill allowed several amendments.

The primary amendment was the Specter Amendment (Sen. Arlen Specter (R-PA) that failed but would have allowed the accused Habeas Corpus rights in US courts. Habeas Corpus rights allow accused to question if there is probable cause for their detention. Both bills provide that the accused, if found guilty, can appeal the decision to US courts in Washington, D.C. including the Supreme Court. The appeal court, however, can only determine if the military commission followed all procedures in the case. Senate amendments can be read here

The following is the report on the House bill. It applies to the Senate bill.

The main focus of this bill is to establish legal procedures by which unlawful enemy combatants can be tried for war crimes. An unlawful enemy combatant (UEC) is defined in the bill as one who is part of or affiliated with a force or organization that is engaged in hostilities against the US in violation of the law of war. The definition includes those who have committed a hostile act in aid of such a force or organization or has supported hostilities in through aid. Those detained as enemy combatants are included and the bill specifies al Qaeda, the Taliban and any international terrorist organization or their associated forces.

The bill further establishes who is not an unlawful enemy combatant by defining who is not subject to the provisions of this bill. Anyone determined by the President and the Secretary of Defense as a lawful enemy combatant (prisoners of war included) and a civilian protected by international law. (Civilians not taking an active part in the hostilities, military personnel placed hors de combat by sickness, wounds or detention and military medical or religious personnel) A lawful enemy combatant would be a member of the regular forces of a State engaged in hostilities with the US, a member of a militia, volunteer corps or organized resistance under a responsible command who carry arms openly, wear distinctive sign recognizable from a distance and who abide by the law of war. Included is a member of a regular armed force who professes allegiance to a government engaged in hostilities against the US.

The bill creates a new section in Title 10 US Code regarding military commissions that try activities of lawful enemy combatants. The new chapter-47A-is specific to trying unlawful enemy combatants. Such individuals would be tried by a military commission established by the Secretary of Defense or any officer or official of the US he designates. Commission members (akin to a jury) would be fully qualified by age, education, training, experience, length of service and judicial temperament and may not be the accuser or a witness for the prosecution or an investigator or counsel in the case. A military judge would govern the proceedings. The judge must be a commissioned officer, a member of the bar of a federal court or highest State court and is certified as qualified as a military judge in general court-martial by the Judge Advocate General.

In a very general description that represents the overall tone of the new rules, the bill provides that: the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; that if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt. The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States. Two-thirds of commission members present must vote for conviction to find guilt. Three-fourths present must agree on any sentence bringing confinement for more than ten years or life. In the case of the death penalty no one can be so sentenced unless the death penalty is established as a punishment for the crime, the prosecutor expressed in advance he is seeking the death sentence and the commission members unanimously found the accused guilty and all agree to the death sentence. Although the number of commission members can vary, at least 12 members must be present in cases where the death penalty is sought. If physical conditions or military exigencies dictate, the Secretary of Defense may narrow the number to nine members.

REPRESENTATION
The accused will be provided a qualified military defense counsel but may chose representation by civilian counsel. Civilian counsel must be a US citizen, member of the federal bar or a highest State bar, has not been subject to sanction or disciplinary action by an court, bar or government authority for misconduct qualified to practice law in a military commission and is determined to be eligible for access to classified information of a Secret or greater degree of classification and signs a written agreement to comply with applicable regulations including rules of conduct during the proceedings. The accused will not be excluded from any part of the trial other than when commission members are voting or deliberating. The judge, however, may exclude the defendant to ensure the physical safety of individuals or to prevent the accused from disrupting the proceedings.

CHARGES

Charges would be certified under oath by a commissioned officer who must state he has personal knowledge of, or reason to believe, the matters in the charge are true to the best of his knowledge and belief. The accused be informed of the charges as soon as practicable.

The bill does not establish but codifies existing actions that violate US laws and would be triable by a military commission.

There are 27 violations: Murder of protected persons, attacking civilians, attacking civilian objects and property, attacking protected property pillaging, denying quarter (take no prisoners), hostage taking, employing poison or analogous weapons, using protected persons as shields, using protected property as shields, torture, cruel or inhuman treatment, intentionally causing serious bodily injury, cruel or inhuman treatment, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in the law of war, using treachery or perfidy (faithlessness), improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy. (Read explanations of the violations)

TESTIMONY

The accused is prohibited from testifying against himself. Statements obtained by torture would be excluded “except against a person accused of torture as evidence the statement was made.”

CLASSIFIED AND OTHER EVIDENCE

“The trial counsel may not make a presentation requesting the admission of classified information outside the presence of the accused unless the head of the department or agency which has control over the matter certifies in writing to the military judge” the disclosure of the classified information to the accused could reasonably be expected to prejudice the national security; and that such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security. The judge can close the trial to the public to protect classified information if it is reasonably expected to cause identifiable damage to the public interest, national security and intelligence of law enforcement sources, methods or activities and to ensure physical safety of individuals. The judge may not exclude the accused from any portion of a closed proceeding except when necessary to protect classified information the disclosure of which to the accused could be expected to damage the national security and those associated. The judge must specifically find that the exclusion is not overly broad and will not prohibit a fair trial. No evidence may be admitted that has not been provided to the accused unless the evidence is classified and the judge finds that considering the evidence without the presence of the accused is warranted, an unclassified summary or redacted version would not be adequate substitute and admission of the evidence would not deprive the accused of a full and fair trial. Accused defense counsel would have access to the classified evidence admitted without the presence of the accused. Defense counsel would not be obligated to disclose the information to the accused. A statement made by the accused under interrogation that has been classified must be disclosed to the accused.

If a statement by the accused was allegedly obtained through coercion the military judge must render the statement unreliable or lacking in probative value (serving to prove). Evidence that is believed to be obtained using techniques considered cruel, unusual or inhumane treatment or punishment would not be admissible if gathered after December 30, 2005, the date when Congress enacted the Detainee Treatment Act of 2005 that better clarified treatment of prisoners that was prohibited. Evidence gathered before that date and after September 11, 2001 would be admissible.

Evidence known to the prosecution that might exonerate or absolve the accused must be disclosed to the accused as soon as practicable. If the evidence is classified it can be provided to the defense counsel.

The military judge is given wide option for ruling on evidence and other considerations. The judge is allowed to change his rulings at any time during the trial.

RULES OF PROCEDURES AND EVIDENCE

The accused is permitted to present evidence in his defense, to cross examine the witnesses against him and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing.

The accused shall be present at all sessions of the commission other than when voting.

Evidence shall be admissible if the military judge determines it would have probative value to a reasonable person. The evidence is not admissible on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.

A statement by the accused that is otherwise admissible will not be excluded on grounds of alleged coercion or compulsory self-incrimination.

Evidence shall be admitted as authentic as long as the judge determines there is sufficient basis to find that the evidence is what it claims to be.

Hearsay evidence not otherwise admissible in a court martial trial may be admitted if the proponent of the evidence makes known to the defendant sufficiently in advance to give the defendant time to view the evidence, the intention to offer the evidence and the particulars of the evidence. Hearsay evidence is not otherwise admissible if the defendant demonstrates that the evidence is unreliable of lacking in probative value.

The Judge may exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the commission or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

The Judge may close any or all hearings to the public to protect information the disclosure of which could reasonably be expected to cause damage to the national security including intelligence sources methods or activities or to ensure the physical safety of individuals.

HABEAS CORPUS

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

LEGAL ACTION AGAINST THE US FOR ILLEGAL TREATMENT OF DETAINEES SINCE SEPTEMBER 11, 2001

"No court, justice or judge shall have jurisdiction to hear or consider another action against the US 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 US and has been determined by the US to have been properly detained as an enemy combatant or is waiting that determination. This provision will apply to all cases, without exception, pending on or after the enactment of this bill which relate to any aspect of the detention, transfer, treatment, trial or conditions of detention of an alien detained by the US since September 11, 2001."

OTHER CONSIDERATIONS

The accused may not invoke the Geneva Convention or any protocols thereto in any habeas corpus or other civil action or proceeding in any US court. The matter in particular that may not be invoked relate to wounded and sick in the field and the treatment of prisoners of war and the protection of civilian persons in time of war.

The President of the United States is given the authority (and the bill says that authority is supported by the Constitution) to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations that are not grave breaches of the Geneva Conventions. The President would issue those interpretations in the Federal Register as an Executive Order. Grave breaches of conduct include torture, rape, and cruel and inhuman treatment.

No person may, without his consent, be tried by a military commission a second time for the same offense. A finding of guilt would not be final until after a review has been completed.

A death sentence may not be executed until the judgment is final and approved by the President. A death sentence is not final until the time for the accused to file for a review by the Court of Appeals.

Mental disease of defect does not constitute a defense but is relevant if, as a result, the accused was unable to appreciate the nature and quality of the wrongfulness of his acts and must be proven by the accused in clear and convincing evidence. The commission must then decide on guilty, not guilty or not guilty by reason of lack of mental responsibility.

Commission member votes will be by secret ballot and discussions and deliberations will not be done in the presence of the accused.

PUNISHMENTS

No cruel and unusual punishments are allowed including flogging, branding, marking and tattooing the body. Single or double irons can not be used except for safe custody. Sentences of confinement would be determined by the Secretary of Defense but must be in a place under the control of the US or its allies that allow US use.

REVIEW AND APPEAL

A decision will be immediately conveyed to the Secretary of Defense or another authority who convened the commission. The convening authority has the sole discretion to approve, disapprove, commute or suspend a sentence in whole or in part but may not increase a sentence and is not required to take any action on a commission judgment. The convening authority may dismiss any charge or specification by setting aside a guilty finding or reduce that guilty finding to a lesser charge. If the convening authority finds an error or omission in the record showing improper or inconsistent action by the commission that can be rectified without material prejudice to the accused, he may order a rehearing or a revision but not if there was a finding of not guilty. The exception to that rule would apply if under the not guilty finding there is a guilty finding on another charge that sufficiently alleges a violation or justifying an increase in the severity of the sentence if the sentence in not a blanket, mandatory sentence. If the death penalty is handed down the sentence can not be carried out until the case is thoroughly reviewed and the President agrees to that sentence.

An error of law would not be grounds to overturn a commission decision unless the error materially prejudices the rights of the accused. The reviewing authority that sets aside a guilty finding will have the authority to impose a lesser offense, where applicable, if the accused was accused of one.

All decision would be reviewed by the Court of Military Review if the decision is ‘guilty’.

The US can not appeal a finding of not guilty but can appeal decisions to terminate a commission or a judges decision to exclude evidence it thinks is substantial proof of military fact and some procedural actions.

A successful appeal by the accused can lead to a rehearing if appropriate. The accused can appeal a decision to the Circuit Court of the District of Columbia and the US Supreme Court. The scope of the Court of Appeals is limited to a determination if the military commission's decision is consistent with military commission standards and procedures and the Constitution.

Sponsor: Senator Mitch McConnell (R-KY)

Vote: Passed Senate 65 to 34 September 28, 2006 (RV 259). The House passed the bill 250 to 170 (RC 508) September 29, 2006 clearing the war for the President's signature.

Cost to the taxpayers: No discernible cost.

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MORE INFORMATION

SENATE AMENDMENTS

1. S.AMDT.5085 to S.3930 In the nature of a substitute.
Sponsor: Sen Frist, William H. [TN] (introduced 9/27/2006) Cosponsors (None)
Latest Major Action: 9/27/2006 Senate amendment agreed to. Status: Amendment SA 5085 agreed to in Senate by Unanimous Consent.

2. S.AMDT.5086 to S.3930 In the nature of a substitute.
Sponsor: Sen Levin, Carl [MI] (introduced 9/27/2006) Cosponsors (2)
Latest Major Action: 9/27/2006 Senate amendment not agreed to. Status: Amendment SA 5086 not agreed to in Senate by Yea-Nay Vote. 43 - 54. (RV 254).

3. S.AMDT.5087 to S.3930 To strike the provision regarding habeas review. The bill does not allow defendants the writ of Habeas Corpus. The amendment attempted to reverse that exclusion.
Sponsor: Sen Specter, Arlen [PA] (introduced 9/27/2006) Cosponsors (7)
Latest Major Action: 9/28/2006 failed in the Senate 48 to 51 (RV 255)

4. S.AMDT.5088 to S.3930 To provide for the protection of United States persons in the implementation of treaty obligations. This amendment brings attention to the codified list of interrogation practices that Congress determined were illegal. The list was accepted by the military and included in the military code.
Sponsor: Sen Kennedy, Edward M. [MA] (introduced 9/27/2006) Cosponsors (2)
Latest Major Action: 9/28/2006 Failed in the Senate 46 to 53 (RV 258)

5. S.AMDT 5104 to S 3930 To prohibit the establishment of new military commissions after December 31, 2011. The amendment would sunset this bill in five years requiring Congress to reconsider at another time, the merits of the bill.

Sponsor: Senator Robert Byrd (WV)

Last Major Action: 9/28/06 Failed in the Senate 47 to 52 (RV 257)

6. S AMDT 5095 to S 3930 To provide for congressional oversight of certain Central Intelligence Agency programs.

Sponsor: Senator John Rockefeller (WV)

Last Major Action: 9/28/06 Failed in the Senate 46 to 53 (RV 256)

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