Thursday, July 27, 2006
The Bush Administration Draft Hamdan Response Bill
Here's one version of the draft legislation that the Bush Administration is considering in the wake of Hamdan. I believe it's the same version that the New York Times and Washington Post have reported on in recent days. (NOTE: FWIW, I did not receive it from anyone in the Administration or those two newspapers. My sense is that it's been floating all around town today.)
The proposed draft Detainee Commissions Act (pdDCA2006) [my title, not the one on the draft, which is "Enemy combatant militiary commissions act of 2006"] on this site gives a sense of being all points and no authorities, except for the boilerplate lifted from UCMJ in titles 200ff.
Jack has covered the international court aspects.
The only cite in DCA 100 of note is Madsen v Kinsella (1952), a case involving jurisdictional disputes in occupied W. Germany and habeas rights of an American spouse whose detainment was for a domestic crime but the argument was concerning which jail would house her, so jurisdiction description necessitated review of the president's rights to form commissions, as she potentially could have been tried in two different venues in occupied territory. Detainment after sentencing was in the territorial US.
At pdDCA2006 section 228 UCMJ Article 55 boilerplate about various kinds of torture is a very limited list by modern standards. You have written elsewhere on the list of techniques employed by US personnel 2001ff.
During the legislative history of the McCain amendment I thought its evolution began from a surprisingly lax specificity, it was watered down, finally passed, and the presidential signing statement, moreover, invoked cryptically the 'unitary' executive authority to disregard it in order to protect citizens of the US; immediately following that passage in the signing statement the president's language reaches toward the Graham amendment and its narrowing of habeas. I think congress in discussing the pdDCA2006 needs to make specific its intentions with regard to the linkages it sees between letting the president disregard fairly bland bans on torture and allowing him to rework habeas.
Complementarily, UCMJ rules of evidence boilerplate imported in pdDCA2006 in the copy of that document linked, above, already have traces of redactions of prisoner rights. It is clear where the editor of that recension was going; but, it is part of the process of politics; and, hopefully, open discussion will result in a more transparent process for detainee treatment from capture to its ultimate end, and, importantly, what congress is willing to let the president do, by the legislative body's proactively defining the bounds of his discretion.
I found distasteful, but, perhaps, not untenable, pdDCA2000 explicit limitations or the prisoner's (or his counsel's) right to hear all of the charges against him; similarly, the admissability of hearsay from witnesses is a weak part of the commission evidentiary construct preserved in its flawed state in pdDCA2006.
Throughout, I got the sense the president intends to blue pencil the Geneva Conventions, as well, employing his executive right to withdraw from treaties, as has been this president's wont.
Some of the rhetoric about the international interface appears virtually lifted from Yoo Bybee epoch writings.
The most encouraging parts of the draft, perhaps, are its very existence. It holds out hope that there will be dialog, and seems to indicate the Supreme Court's work has borne fruit.
I perceive many well intentioned people engaged in developing this legislation; indeed, abroad as well as in the US. It is a work that will help understand how to address the civil unrest it seeks to help us control and resolve.
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