In a bill just introduced yesterday on the heels of the Supreme Court's decision in the Hamdan case that all of us seemed very pleased with because it served as a slapdown for the administration on its continual grab for unchecked power. Sen. Arlen Specter has shown that he is a true lackey of the Bush Administration by introducing a new bill called the
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The actual text of the bill is not quite up on Thomas yet, but if you really want to read it, it is currently lurking in the Senate record from yesterday. At S6797 which you can get to by searching on the bill and looking at all Congressional actions.
It's scary how fast the Senate can move when it wants to as they have scheduled a hearing on it for July 11. The summary of the bill is below.
The Unprivileged Combatants Act of 2006 is a follow-up to the Military Commissions Procedures Act of 2002 (S. 1937, 107th Congress) which you cosponsored with Senator DURBIN in February 2002. The goal of this bill is to balance the need for national security (interrogations and detention of combatants) with the need to afford detainees with sufficient due process so that nations such as Great Britain and Australia will not place undue pressure on the United States to release their citizens from Guantanamo Bay. This bill addresses only those combatants currently held at Guantanamo Bay. The Act clarifies the procedures used in Combatant Status Review Tribunals and establishes procedures for the trial of detainees. These procedures constitute ``a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.'' (Hamdi v. Rumsfeld, 542 U.S. 507, O'Connor, J.) This bill does not address the issue of unprivileged combatants contesting their detentions through habeas appeals. Although the Graham-Kyl-Levin amendment to the 2005 DoD appropriations bill has addressed this issue, a forthcoming Supreme Court decision (Hamdan v. Rumsfeld, 04-5393) will probably require additional legislation on this matter.
Section 301: Findings: This title is in direct response to the United States Supreme Court's ruling in Rasul v. Bush.
Section 302: Definition Section: Definition section of the bill which defines primary terms such as field tribunal, classification tribunal, military commission, and unprivileged combatant.
Section 303: Authorizing Military Commissions: The President is authorized to establish military commissions for the trial of individuals for offenses as provided in this title.
Section 304: Jurisdiction Over Unprivileged Combatants: This title establishes exclusive jurisdiction to hear any matter involving an unprivileged combatant who has been detained by the Department of Defense at Guantanamo Bay, Cuba. These detainees may be tried via laws of war or pursuant to the Department of Defense's Military Commission Instruction Number Two.
Section 305: Appellate Jurisdiction: The U.S. Courts of Military Appeals shall have exclusive jurisdiction over appeals from all final decisions of a classification tribunal board or military commission under this tide. These decisions are then subject to review by the Supreme Court by writ of certiorari.
Section 306: Military Commission: The Commissions shall consist of three military officers, at least one of whom is a Judge Advocate General. These Commissions shall decide the guilt or innocence of detainees charged under section 304 of this Act. This is basically what happens now.
Section 307: Persons in Custody: Not more than 60 days after the enactment of this Act, the Secretary of Defense is required to develop a list of all persons who are being detained at Guantanamo Bay, Cuba, and whom the government wishes to continue to detain as an unprivileged combatant. The Act requires that the original list and subsequent lists, updated at least once every 60 days, be submitted to the appropriate House and Senate committees.
Section 308: Field Tribunals: Not more than 30 days after a suspected unprivileged combatant has been detained by United States forces, the Department of Defense shall conduct a field tribunal (``FT'') in order to determine whether the detainee is an unprivileged combatant and whether the detainee is entitled to the rights afforded under the Geneva Convention. The procedures governing a field tribunal shall be promulgated by the Department of Defense.
Section 309: Classification Tribunals: A Classification Tribunal (``CT'') is very similar to the current Combatant Status Review Tribunal. The CT shall be composed of three military officers, one of whom shall be an attorney. Pursuant to a hearing before a CT, a designee shall be released and repatriated to an appropriate country unless a CT finds by a preponderance of the evidence that--(l) the detainee is a threat to the national security interest of the United States; or (2) there are reasonable grounds to believe that if released the person would take up arms against the United States. Decisions of the CT shall be repeated every six months. Detainees may be released only when the CT or the Administrative Board determines the detainee is no longer a threat to national security. This section also expressly states that a detainee who is also a United States citizen may not be held or tried under this act.
Section 310: Classification Tribunal Procedures: Procedures for CT's are the same as those of Combatant Status Review Tribunals except detainees shall be represented by counsel and are permitted to view unclassified discovery that the prosecution plans to present before the tribunal.
Section 311: Continuance of Classification Tribunals: Classification tribunals may be continued in order for the government to continue their interrogation of a detainee. Upon a motion from the Government, the classification tribunal board may grant a continuance for up to a 6-month period, if the classification tribunal board determines that: 1) the individual being detained is a high level individual in the planning or financing of terrorist activities, or 2) the individual possesses information vital to the safety of the United States or its citizens. The Government may obtain more than one continuance if it demonstrates that such continuances are necessary for information gathering purposes as it relates to national security. Said applications for Continuances shall be made ex parte and before a detainee is given an attorney. Accordingly, a detainee is only given an attorney once the tribunal is informed that the interrogation efforts have been exhausted.
Section 312 & 313: Criminal Prosecution Procedures: Military Commission procedures will be the same as the current procedures afforded detainees under the current system.
Section 314: Communication with Persons in Custody: Limits communications by any detainee indicted or convicted under this Act to the individual's interpreter, assigned counsel, prison personnel, and any other individual(s) approved by the Secretary of Defense.
Section 315: Commission Counsel: Provides the following criteria for persons to be admitted to practice before a commission: 1) U.S. Citizen, 2) has been admitted to practice law in a State, district, territory or possession of the United States or before Federal Court, 3) has not been disciplined by any court, bar or other competent governmental authority for misconduct, 4) maintains a minimum of ``secret'' clearance and 5) signs a written agreement to comply with all applicable regulations aid instructions for counsel during the course of proceedings. It further provides persons admitted to practice will not confer with any colleague who does not have at least a ``secret'' clearance. This section provides that individuals seeking to practice before a commission will be expedited in consideration for obtaining the necessary security clearance. The decision of the Secretary of Defense regarding the granting or not of the security clearance is final and is not eligible for appeal or review. Finally, this section provides that persons practicing before the commission are eligible to have their travel expenses reimbursed.