Victor Hansen

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September 06, 2006

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Comments

Tung Yin

Regarding the re-amendment of the habeas statute, it should be interesting to see the debates about whether this represents Congress's original intent of the DTA, or revisionist history. It does seem to me that if this bill passes by largely the same vote as the DTA, it would be something of validation of Justice Scalia's dissent.

Bobby Chesney

Certainly the MCA draft goes out of its way to eliminate any argument on the retroactivity point. This will then pave the way for debate regarding the habeas suspension issue, I suppose.

One aspect of the draft that is particularly interesting is found on p.15, in the proposed 10 USC 948b (rules of construction). Section 948b(d) declares that the commissions described in the MCA satisfy the "regularly-constituted court" standard of Common Article 3. Will that bind a reviewing court in the inevitable "Hamdan II"?

Steve Vladeck

Bobby -- That, of course, begs the question whether Congress can authoritatively interpret a treaty by statute, no?

fdelondras

Is it just me or is the Administration actually inviting SCOTUS to find that Guantanamo Detainees have constitutional rights??

Alan G. Kaufman

My thought is that this tribunal legislation should be designed to accomplish three strategic purposes:

1. Keep captured non-state unlawful combatants off of the long war battlefield and out of the fight for its duration.
2. Deter noncompliance with the law of war by trial and punishment for its violation.
3. Reinforce US strategic objectives in spreading American values with respect to the rule of law and principles of democratic government.

As currently written, and as implicitly discussed by the uniformed military Judge Advocates General in their Senate Judiciary Committe testimony, it would accomplish none of these three objectives well, and would undermine the third.

Thoughts?

Anderson

but coerced statements may be admitted “if the military judge finds that the circumstances under which the statement was made render it unreliable or lacking in probative value.”

An "unless" seems to have fallen out here, as those are presumably just the statements which would be INadmissible. Unless the bill is even more horrible than it seems?

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