Senator Dodd has introduced S. 4060, a bill to revise the recently enacted MCA by, among others things, providing habeas corpus jurisdiction for GTMO detainees. An earlier draft was titled the "Military Commission Civil Liberties Restoration Act," but it appears that someone has thought better of the politics of that one, and S.4060 as actually introduced is to be known as the "Effective Terrorists Prosecution Act of 2006."
I've posted the text of S. 4060 below the jump, along with commentary describing how each proposed change departs from the MCA.
Does this have a chance of becoming law? It is difficult to see how, given the certainty of a veto and the long odds on super-majority support in both houses. It also may not end up being the main Democratic vehicle for MCA reform, as Senator Leahy apparently is working on his own reform proposal, which would face similar obstacles. On the other hand...should the Supreme Court ultimately strike down some important aspect of the MCA, forcing the issue back into Congress, things would of course look quite different with respect to whichever bill becomes the focus of Democratic support. That's all a long way off, however. The D.C. Circuit (Boumediene, Al Odah) and the Fourth Circuit (al-Marri) are a ways off from their rulings on the MCA. While it is possible that we'll see the Supreme Court get to this issue in the current term, I'm not holding my breath.
For the text of S.4060, see below the jump:
From the Congressional Record, with my comments added in bold italics below:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Effective Terrorists Prosecution Act of 2006''.
SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.
Paragraph (1) of section 948a of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended to read as follows:
``(1) UNLAWFUL ENEMY COMBATANT.--The term `unlawful enemy combatant' means an individual who directly participates in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant. The term is used solely to designate individuals triable by military commission under this chapter.''. [In comparison to the MCA definition, the key here is the requirement of "direct" participation and the dropping of coverage for those engaged in conflict not against us but against U.S. allies. Also note the clarification that the definition is for use only in identifying persons subject to commission jurisdiction, and should not be read as authority for detention too.]
SEC. 3. DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY COMBATANT STATUS REVIEW TRIBUNAL NOT DISPOSITIVE FOR PURPOSES OF JURISDICTION OF MILITARY COMMISSIONS.
Section 948d of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended--
(1) by striking subsection (c); and
(2) by redesignating subsection (d) as subsection (c). [Self-explanatory]
SEC. 4. EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF STATEMENTS OBTAINED BY COERCION.
Section 948r of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended by striking subsections (c) and (d) and inserting the following new subsection (c):
``(c) Exclusion of Statements Obtained by Coercion.--A statement obtained by use of coercion shall not be admissible in a military commission under this chapter, except against a person accused of coercion as evidence that the statement was made.''. [The MCA requires exclusion of statements obtained by "torture". As for lesser coercion, the statement could still be admitted if the judge found sufficient reliability in the circumstances and, for statements made after passage of the DTA but not before, that the coercion did not constitute cruel, inhuman, or degrading treatment. This proposed change would, presumably, preclude introduction of quite literally all non-voluntary admissions any detainees have made. That's sure to draw fire.]
SEC. 5. DISCRETION OF MILITARY JUDGE TO EXCLUDE HEARSAY EVIDENCE DETERMINED TO BE UNRELIABLE OR LACKING IN PROBATIVE VALUE.
Section 949a(b)(2)(E)(ii) of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended by striking ``if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value'' and inserting ``if the military judge determines, upon motion by counsel, that the evidence is unreliable or lacking in probative value''. [This isn't nearly as clear as it ought to be, but I think the goal here is to shift the burden on whether hearsay is sufficiently reliable from the opponent to the proponent of the evidence.]
[Page: S11061] GPO's PDF
SEC. 6. DISCRETION OF MILITARY JUDGE TO TAKE CERTAIN ACTIONS IN EVENT THAT A SUBSTITUTE FOR CLASSIFIED EXCULPATORY EVIDENCE IS INSUFFICIENT TO PROTECT THE RIGHT OF A DEFENDANT TO A FAIR TRIAL.
Section 949j(d)(1) of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended by adding at the end the following: ``If the military judge determines that the substitute is not sufficient to protect the right of the defendant to a fair trial, the military judge may--
``(A) dismiss the charges in their entirety;
``(B) dismiss the charges or specifications or both to which the information relates; or
``(C) take such other actions as may be required in the interest of justice.''. [This provision fills a gap in the MCA, which did not specify what the trial judge should do where there is exculpatory but classified evidence for which an adequate substitute cannot be created. This provisions brings the commission procedure more clearly into line with CIPA, though it is possible a judge would have construed the original language to similar effect in any event.]
SEC. 7. REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES RATHER THAN COURT OF MILITARY COMMISSION REVIEW.
(1) IN GENERAL.--Section 950f of title 10, United States Code (as enacted by the Military Commissions Act of 2006 (Public Law 109-366)), is amended to read as follows:``§950f. Review by Court of Appeals for the Armed Forces
``(a) Cases To Be Reviewed.--The United States Court of Appeals for the Armed Forces, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.
``(b) Scope of Review.--In a case reviewed by the United States Court of Appeals for the Armed Forces under this section, the Court may only act with respect to matters of law.''.
(2) CLERICAL AMENDMENT.--The table of sections at the beginning of subchapter VI of chapter 47A of such title (as so enacted) is amended by striking the item relating to section 950f and inserting the following new item:
``950f. Review by Court of Appeals for the Armed Forces.''.
(b) Conforming Amendments.--
(1) IN GENERAL.--Chapter 47A of title 10, United States Code (as so enacted), is further amended as follows:
(A) In section 950c(a), by striking ``the Court of Military Commission Review'' and inserting ``the United States Court of Appeals for the Armed Forces''.
(B) In section 950d, by striking ``the Court of Military Commission Review'' each place it appears and inserting ``the United States Court of Appeals for the Armed Forces''.
(C) In section 950g(a)(2), by striking ``the Court of Military Commission Review'' each place it appears and inserting ``the United States Court of Appeals for the Armed Forces''.
(D) In section 950h, by striking ``the Court of Military Commission Review'' each place it appears and inserting ``the United States Court of Appeals for the Armed Forces''.
(2) UNIFORM CODE OF MILITARY JUSTICE.--Section 867a(a) of title 10, United States Code (article 67a(a) of the Uniform Code of Military Justice), is amended by striking ``Decisions'' and inserting ``Except as provided in sections 950d and 950g of this title, decisions''. [The idea here is that appeal from a military commission decision will be to the Ct of Appeals for the Armed Forces rather than to a newly-created Ct of Military Commission Review.]
SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a) In General.--Section 6(a) of the Military Commissions Act of 2006 (Public Law 109-366) is amended--
(1) in paragraph (2)--
(A) in the first sentence, by inserting after ``international character'' the following: ``and preserve the capacity of the United States to prosecute nationals of enemy powers for engaging in acts against members of the United States Armed Forces and United States citizens that have been prosecuted by the United States as war crimes in the past''; and
(B) by striking the second sentence; [i.e., the sentence in the MCA that says that "[n]o foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d)" of the War Crimes Act] and
(2) in paragraph (3)--
(A) in subparagraph (A)--
(i) by striking ``the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate'' and inserting ``the President has the authority, subject to congressional oversight and judicial review, to promulgate''; [self-explanatory, but important]
(ii) by striking ``higher standards and'';
(B) in subparagraph (B), by striking ``interpretations'' and inserting ``rules''; and
(C) by amending subparagraph (D) to read as follows:
``(D) The President shall notify other parties to the Geneva Conventions that the United States expects members of the United States Armed Forces and other United States citizens detained in a conflict not of an international character to be treated in a manner consistent with the standards described in subparagraph (A) and embodied in section 2441 of title 18, United States Code, as amended by subsection (b).''. [That's interesting. Can Congress compel the President to issue that sort of statement? Is there a "sole organ" objection to be made? Clever choice of substantive message to include, in any event, as who wants to oppose that?]
(b) Modifications of War Crimes Offenses.-- [Note that this seems to have been added since the earlier version of the bill linked in the text up above]
(1) INCLUSION OF DENIAL OF TRIAL RIGHTS AMONG OFFENSES.--Paragraph (1) of section 2441(d) of title 18, United States Code (as enacted by the Military Commissions Act of 2006), is amended by adding at the end the following new subparagraph:
``(J) DENIAL OF TRIAL RIGHTS.--The act of a person who intentionally denies one or more persons the right to be tried before a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples as prescribed by common Article 3 of the Geneva Conventions.''. [Self-explanatory]
(2) DEFINITION OF SERIOUS PHYSICAL PAIN OR SUFFERING.--Clause (ii) of subparagraph ((D) of paragraph (2) of such section (as so enacted) is amended to read as follows:
``(ii) serious physical pain;''. [replaces MCA version: "extreme physical pain"]
SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES.
(a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed. [This would restore the status quo post-Rasul, with statutory habeas extending to GTMO detainees at least (and possibly elsewhere in light of Rasul's potentially broad rationale) and with other civil actions by detainees, renderees, and others also being possible. Of course, the DTA's jurisdiction-stripping rules would still apply as to post-enactment filings....]
(b) Conforming Amendment.--Subsection (b) of section 7 of the Military Commissions Act of 2006 (Public Law 109-366) is repealed.
SEC. 10. EXPEDITED JUDICIAL REVIEW OF MILITARY COMMISSIONS ACT OF 2006.
Notwithstanding any other provision of law, the following rules shall apply to any civil action, including an action for declaratory judgment, that challenges any provision of the Military Commissions Act of 2006 (Public Law 109-366), or any amendment made by that Act, on the ground that such provision or amendment violates the Constitution or the laws of the United States:
(1) The action shall be filed in the United States District Court for the District of Columbia and shall be heard in that Court by a court of three judges convened pursuant to section 2284 of title 28, United States Code. [The DTA/MCA review framework skips over the DC district court; this bill skips the DC Circuit....]
(2) An interlocutory or final judgment, decree, or order of the United States District Court for the District of Columbia in an action under paragraph (1) shall be reviewable as a matter of right by direct appeal to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after the date on which such judgment, decree, or order is entered. The jurisdictional statement with respect to any such appeal shall be filed within 30 days after the date on which such judgment, decree, or order is entered.
(3) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any action or appeal, respectively, brought under this section.
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall take effect on October 17, 2006, the date of the enactment of the Military Commissions Act of 2006 (Public Law 109-366), immediately after the enactment of that Act and shall apply to all cases, without exception, that are pending on or after such date. [Congress is getting good at this effective date business....]