# WH proposal would not only legalize military courts but expand their reach **URL:** \ **Category:** Great Debates\ **Created:** [August 3, 2006, 5:50pm UTC](https://boards.straightdope.com/t/wh-proposal-would-not-only-legalize-military-courts-but-expand-their-reach/367219 "2006-08-03T17:50:54Z")\ **Posts on this page:** 4\ **Page:** 1
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 3, 2006, 5:50pm UTC](https://boards.straightdope.com/t/wh-proposal-would-not-only-legalize-military-courts-but-expand-their-reach/367219/1 "2006-08-03T17:50:54Z")
The Supreme Court ruled, in [_Hamdan v. Rumsfeld,_](http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld) that the military “tribunals” (using very different procedures than those established for courts martial) set up for Gitmo prisoners are unlawful because (among many other reasons) they go beyond anything Congress has authorized. So now the Bush Admin is [trying to get Congress to authorize them.](http://www.washingtonpost.com/wp-dyn/content/article/2006/08/01/AR2006080101334.html) But, more than that, it wants tribunals with even broader scope and jurisdiction than they have claimed up to now: > [@](#): > > A draft Bush administration plan for special military courts seeks to expand the reach and authority of such “commissions” to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal. > > The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court’s jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said. > > \ > > The military lawyers nonetheless supported extending the jurisdiction of the commissions to cover those accused of joining or associating with terrorist groups engaged in anti-U.S. hostilities, and of committing or aiding hostile acts by such groups, whether or not they are part of al-Qaeda, two U.S. officials said. Am I the only one who suspects that, not only might these tribunals take a very broad reading of “aiding hostile acts,” but they’re not intending to limit their prosecutions to **foreigners?!** Does anybody here think this legislation is a good idea? And could it pass muster under the Geneva Conventions, which SCOTUS ruled still apply to such prisoners? And could it pass muster under the [Fifth Amendment?](http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution) Or could an argument be made, even after _Hamdan,_ that the Fifth Amendment does not apply here? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 3, 2006, 6:37pm UTC](https://boards.straightdope.com/t/wh-proposal-would-not-only-legalize-military-courts-but-expand-their-reach/367219/2 "2006-08-03T18:37:50Z")
[QUOTE=BrainGlutton] Am I the only one who suspects that, not only might these tribunals take a very broad reading of “aiding hostile acts,” but they’re not intending to limit their prosecutions to **foreigners?!** [/quote] Hasn’t that already been decided as unconstitutional by the SCOTUS in _Hamdi_? > [@](#): > > Does anybody here think this legislation is a good idea? It’s not a piece of legislation until it gets passed. I see this is the administrations first bargaining position. We’ll see what Congress actually authorizes, and it’s pretty clear that even the Republicans aren’t just going to rubber-stamp Bush’s proposal. > [@](#): > > And could it pass muster under the Geneva Conventions, which SCOTUS ruled still apply to such prisoners? Probably not-- I’m thinking particularly of not letting the accused see the evidence being used against them. > [@](#): > > And could it pass muster under the [Fifth Amendment?](http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution) Or could an argument be made, even after _Hamdan,_ that the Fifth Amendment does not apply here? Can you quote the section in \*Hamdan \*that refered to the 5th amendment? I didn’t think constitutional issues were addressed in that decision. But why would the 5th amendment apply since its explicitly exempts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger?” I’m assuming that a Court Martial would be excempt, and that SCOTUS, in _Hamdan_, said the tribunals should be modeled after Courts Martial. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 3, 2006, 8:57pm UTC](https://boards.straightdope.com/t/wh-proposal-would-not-only-legalize-military-courts-but-expand-their-reach/367219/3 "2006-08-03T20:57:48Z")
[QUOTE=John Mace] But why would the 5th amendment apply since its explicitly exempts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger?” [/QUOTE] I read that as meaning cases arising **in** the forces – i.e., courts martial of military personnel accused of crimes. The Gitmo prisoners are not American military personnel. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 3, 2006, 9:02pm UTC](https://boards.straightdope.com/t/wh-proposal-would-not-only-legalize-military-courts-but-expand-their-reach/367219/4 "2006-08-03T21:02:25Z")
[QUOTE=BrainGlutton] I read that as meaning cases arising **in** the forces – i.e., courts martial of military personnel accused of crimes. The Gitmo prisoners are not American military personnel. [/QUOTE] Gee, if only I had said: > [@John Mace](#): > > …SCOTUS, in Hamdan, said the tribunals should be modeled after Courts Martial. Although I’d rephrase that to say that SCOTUS listed that as one option.