Saturday, September 30, 2006

The Military Commissions Act of 2006

Marty Lederman

There were several differences between the versions passed by the House on Wednesday and the Senate on Thursday. But the House on Friday afternoon voted 250-170 to approve the Senate version (S.3930).

This is the enrolled bill
, which has been cleared for transmission to the White House.


Let's see. In this legislation we've got violations of the US Constitution as it applies to US citizens if not also aliens; we've got congressional statutes pretending to overturn US international treaty obligations; and oh yeah...

Doesn't the constitution require bills to originate in the House, then move to the Senate? Seems like a small (or maybe not so small) detail, past precedent notwithstanding and all that, but...

No, only revenue-raising bills must originate in the House. Art. I, sec. 7, cl. 1:

"All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

I need to read the passed version; though in drafts it seemed challenges are applicable only after sentencing by a commission, provided the sentence is published instead of kept as a state secret, in part.

Parallel topic: wondering if there are available documents in the DoJ's appeal in federal court in Cincinnati following the 7-day reprieve issued Thursday in Detroit by AD Taylor. The House sent to the Senate Friday HR5825 (Wilson-R, NM), though it will languish there until the recess is over. I found an interesting rebuttal of the conflict charge in that case clarifying the judge's relevant civic involvements. The 6th court site, to my search, had no record of an appeal recorded as of Friday.

Here is my analysis of the CYA clause of the MCA. It’s a bit tedious, but it’s intended as a starting point for others. I have neither the time nor the training to follow it up. Suffice it to say, I found and have laid out three possible lines of attack, and I suspect that there are others.

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