Allow coerced statements, try for codified crimes, the act of fighting itself is a crime.
Correct. The MCA would then equal a UCMJ court.
I don’t think the MCA tribunals are just as good as a UCMJ courts-martial. I pointed out the differences and you can decide. I can see why Obama would want to use the MCA courts because he would not want to release a terrorist that’s possibly done something illegal.
Ok, I misunderstood.
I can see why he would too, but I don’t agree with the decision.
In other words, you want to make sure that our enemies are right, that we are monsters who deserve death. And as has been pointed our again and again, torture DOES NOT prevent terrorism; rather the opposite.
Meaningless, since they were tortured. ANYTHING they say is tainted evidence because of that, which is one of the reasons torture is a bad idea. How do you know they weren’t ordered by us to make a show upon pain of being tortured some more ? Or that they simply assumed that we would torture them if they didn’t make a show of being terrorists ?
And frankly, after being tortured OF COURSE they’d feel pride over 9-11; even if they didn’t before, or weren’t involved.
Just because we’re on the subject, I mentioned the differences. There are a lot of similarities. Such as: Military Judge and Jury. A lot of the UCMJ procedures are used with only a few modifications (aside from coerced statements being allowed, there’s also only one rule of evidence (relevance) and no privilege against self incrimination). And you are being tried by codified crimes (a pro and con). It’s good because the crimes aren’t just “made up”; I listed it as a difference between the UCMJ court, because they generally try according to the law of war; a civilian court would generally try “law enforcement” type crimes. Whether this is legit to do, has never been decided.
So, another tough decision to be made. Was the recent news release that there are “50-100” detainees who “shouldn’t be released” come out at the same time as Obama saying he’d continue using the MCA courts? That seems like the reason.
The short and simple answer to why a military court instead of a civil or civilian court is that the traditional way to deal with problems of this sort is with a military court. See, of course, the war crimes trials of both German and Japanese military and civilians following WWII, the trial of the WWII saboteurs, the trial of Major Wurtz, the commander of the Confederate POW camp at Andersonville, GA, and I think the trials of Tokyo Rose and Lord Haw-Haw. A military tribunal could avoid an number of piddling procedural questions that could tie up a civilian court such as venue (the actual judicial district where the trial takes place) as well as the big question of finding a court versed in the customary law of war.
The question of why a special military court instead of a regular old general court-martial has a simple but technical answer, too. The jurisdiction of a court-martial extends to members of the armed force and persons accompanying the forces. Clearly the people who are expected to go before the tribunals are not members of the US armed forces.
A military commission (tribunal) is, however, in substance the same thing as a court-martial. Military jurisdiction extends to offenses against the law of war without regard to the military status of the defendants and that jurisdiction can be exercised through military commissions and provost courts. According to paragraph 1-1 of the 1969 Manual for Courts-Martial (personal copy in a fancy expandable fake red leather binding) “Subject to any applicable rules of international law or to any regulations prescribed by the President or by any other competent authority, these tribunals [military commissions and provost courts] will be guided by the applicable principles of law and rules of procedure and evidence prescribed for courts-martial.” That is to say that the court-martial system is already set up to handle this sort of thing. Provided of course that the political powers do no insist on tweaking the system to insure the right outcome or otherwise try to load the dice.
And as I pointed out before, all of these came under criticism at the time.
Congress can limit venue if it wants. It’s done this for all sorts of things (such as intellectual property disputes). And courts have to grapple will all sorts of complex issues. I don’t see why customary law of war is some exception. These arguments aren’t persuasive to me.
Does the UCMJ preclude trying non-military in a court-martial court?
We’re going around in circles at this point. You’re saying that if the government decides to do substantively the same thing as the UCMJ court martial, then the MCA will be substantively the same thing as a UCMJ court martial. That’s a tautology. Are you saying that it is procedurally not possible to bring enemy combatants before a UCMJ court martial?
“…without regard to the military status of the defendants…” being the operative phrase here, I think.
I posted earlier when asked about coerced statements being allowed in as evidence, and that a judge or jury would weigh the evidence.
My question is, Is the Judge/Jury informed that the statement was obtained through coercion and exactly what technique was used, so they could weigh that too in weighing the actual detainees statement?
That would go along way to the MCA courts being credible. That would actually put me over the top and be fine with them.
The thing about it is, Obama was elected by saying “how different he was.” The main reason people like him over Hillary was he DIDN’T vote for the Iraq War. Now he’s going back but he did that long before he was even in office. How about his “pull the troops out of Iraq,” promise. First it was ASAP, then 6 months, then 9 months, then it gets pushed back.
He was seen mocking McCain for his proposal to save 18 billion now he is defending another proposal by him to save 15 billion.
Obama seems too rapped up in trying to be a “rock star,” and not doing a job. Of course if you are critical of him, the “race card,” comes out and you sound bad.
I’ve dealt with Obama being from Chicago, long before any one on ever heard of him, so you’ll find he says whatever to get elected, then makes sure whatever steps he takes he always has an excuse why he didn’t have to do it.
To quote Marcia Brady 
“Everyone talks, but results are what count, and that’s what you’ll get if you elect me. Results.”
Well Mr Obama you are NO Marcia Brady
Both I and elucidator have been criticizing Obama in this thread, and nobody’s pulled the race card. :rolleyes: The only person playing the race card in this thread is you.
Let’s put on our rose-colored glasses for a moment, just for sake of the conjecture.
Lets first assume that Obama means the best possible, and most nearly just, solution. That uppermost in his mind is protecting Americans and serving the interests of justice. That he wishes that the innocent be freed and the guilty kept from mischief.
Note: “50-100” detainees should not be released. Which as much as says that approx 150-200 detainees should be released. I would be incllined to look at this as bracing us with some ugly facts: that the majority of detainees are probably not guilty of anything! Most of us are used to thinking of the detainees as being villains to be feared, the ones who’ve already been released have been quietly shuffled away, we haven’t really confronted the facts of the matter, than we have detained and mistreated a whole bunch of innocent people!
(Again, what to do with those who were not our enemies before but have come to hate us as a result of their treatment at our hands would be a question to tax the wisdom of Solomon…)
So, central to the process of making amends… a major, and public, effort to see the innocent released at the earliest. A military tribunal as sketched out by SpavGel could serve this end perfectly well.
One, it is already deemed legitimate by those who would otherwise be troublesome on the right. They can hardly start screaming about Obama coddling terrorists if he uses a process they’ve already signed off on. Plus, as I noted, “military tribunal” sounds tough, the average American will be unlikely to think of it as too soft.
And of course, simplicity. If the whole godforsaken mess goes to civilian courts, with civilian rules and civilian lawyers, it may well be years getting settled. Years in which the detainees must, we assume, remain detainees. In all probability, then, the military tribunal approach is most likely to free the innocent soonest. They most likely would be freed by a civilian court as well, but it offers no advantage and a number of drawbacks.
If this scenario is correct, Obama is looking for the quickest way to release the innocent. What better message of change could be sent? That there is a new sheriff in town, and he will unlock the jail.
Certainly appears he’s using the same tools as the Bushiviks to his ends, but his ends are wholly different, which he seeks to demonstrate to the world at large and the Muslim world in particular. Leatherface may use a chainsaw, but its a quite different tool in the hands of Hannibal Lecter!
Wait, that analogy didn’t quite work out as intended…
I fail to see how my peckerwood heritage is of any consequence here.
I believe this just means they have jurisdiction to try people fighting against us whether they are lawful enemy combatants (POW’s) or unlawful enemy combatants (not fighting on behalf of a State).
He wasn’t a US Senator until 2005, right? So he didn’t vote in a federal capacity. Can you make a vote that has any effect of the outcome as a State Senator? He did consistently say he was against it before it started. I don’t know how he would have voted as a US Senator, but I’m sure there would have been different pressures to consider.
Probably logistics. An important (unsung) factor that dictates your actions in a war. I don’t think a 3 month difference is a big deal. Now, a military person would know better than to guarantee a timeline and might say something along the lines of, “when the conditions on the ground permit it.” Essentially, whatever Obama’s timeline is, is going to be when it can be done.
Bright, I thought I had dealt with your objections and criticisms. A military commission and a court-martial are not the same thing but they are similar. Both are an exercise of military jurisdiction but the procedures and rules in a court- martial are much more tightly prescribed by the Uniform Code of Military Justice (a congressional enactment under the constitutional power to make rules for the good order and governance of the armed forces) and the series of regulations pronounced by the President, and the Secretary that make up the Manual for Courts-Martial (MCM) including stuff like tables of maximum punishments. Military commissions, on the other hand, are a similar animal but somewhat less carefully structured, incorporating as they do such disparate elements as the so-called customary law of war, the various international conventions and treaties and recognizing the power of the President USA and maybe the service secretaries to make ad hoc rules. The substantive similarity between the two is that the commissions are to observe the same rules of procedure and evidence as courts-martial. They may look the same on the TV screen, but that is merely a matter of style.
Where the Bush administration ran amuck, in my judgement, is that it tried by an exercise of Presidential and Secretarial power to alter the procedural and evidentiary rules of the commissions, making substantial departures from the strictly drawn and frequently interpreted court-martial procedure and evidence rules with an obvious intent to fix the game and assure that the commissions would come up with the appropriate result. For instance, under the MCM rules of evidence involuntary and coerced statements would not be admissible but under the Bush military commission rules they would be good evidence. Hearsay evidence is not admissible under the MCM rules but anonymous reports of non-witnesses without opportunity for cross-examination and pretrial discovery (even worse) would be good evidence before a Bush military commission. The rules for the Bush Gitmo trials represented a substantive departure from the fundamental rule for these things, that they follow the procedural and evidentiary rules of courts-martial.
If the military commissions can be returned to the system contemplated by history and the MCM there is no good reason that they can’s do substantive, speedy and evenhanded justice. That they have so far failed to do that and are now in bad repute can be laid at the feet of a cynical attempt to bend the military justice system to accomplish political ends, or ,more likely, to a failure to think about the probable long term consequences of trying to just keep a lid on the whole thing by doing the first thing that came to mind, that is, incompetence.
Ok, I guess I’m okay with that scenario as long as the administration doesn’t pop up in apellate court saying something like “well, we changed the MCM, so nobody has apellate jurisdiction to determine if due process has been afforded.”