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S. Congress 2006). Under a military commission's procedures and rules of evidence, the accused may present evidence, cross examine witnesses against him, and respond to evidence presented against him; attend all the sessions of the trial; and have the rights to counsel and self-representation. The bill does not grant him the right to see all the evidence against him to establish his guilt or innocence. It authorizes the Secretary to determine what kind of evidence is admissible, including that obtained without warrant within or without the United States. It forbids the disclosure of classified information if deemed detrimental to national security. It authorizes a conviction if the accused enters a plea of guilt or with two-thirds concurrence of the commission members present. The Secretary determines the sentence to be imposed, all post-trial procedures and trial review (U.S. Congress).
Analysis of the Bill
S 3930 broadly defines "unlawful enemy combatant [Section 3 (a) (1) amending § 948(a)(1)]. It greatly limits the range of judicial review for non-citizens kept in U.S. custody and effectively sanctioning indefinite detention and abusive interrogations of non-citizens while limiting accountability [Sec. 71]. It does these by eliminating habeas corpus and post-release obstacles. Military commissions do not satisfy fundamental due process requirements. Their procedures deviate substantially from criminal trials in civilian courts, courts-martial under military law, and international and criminal trials. It reduces the scope of the War Crimes Act, which is the U.S. mechanism for the criminal prosecution of war crimes [Sec. 6]. It also reduces the definitions of rape and sexual assault or abuse as a crime tri-able by a military commission or punishable under the War Crimes Act. It grants retroactive immunity on some U.S. officials who engage in illegal activities, authorized by the executive [Sec. 6 (b) (2); Sec. 7; Sec. 8]. And it limits the applicability of international law in U.S. courts [Sec. 3(a)(1), amending § 948b (f), 948b (g).
Article 49 of the Fourth Geneva Convention
This article protects civilians during war (Goldsmith 2004). It also forbids individual
And mass forcible transfers and deportations of protected persons from occupied territory to that of the occupying power, regardless of the motive. But the Occupying Power may conduct total or partial evacuation if security of the population or some military reasons demands. Protected persons shall not be displaced outside the occupied territory unless material reasons compel it. These persons shall be sent back home as soon as the hostilities in the area cease. The Occupying Power shall assure proper accommodation for protected persons. It shall ensure that the transfers are undertaken in conditions conducive to the person's health, safety and nutrition. The members of the family should not be separated. Transfers and evacuations shall be promptly transmitted to the Protecting Power. The Occupying Power shall not detain protected persons in places where they may be exposed to the perils of war, unless warranted by the security of the population or justifiable military reason. And the Occupying Power shall not move parts of its own civilian population into the territory it occupies (Goldsmith).
The Global Stand against Torture
Article 5 of the 1948 Universal Declaration of Human Rights and other international and regional human rights treaties prohibit torture (Foley 2009). Most countries have entered into treaties, which prohibit torture and other forms of mistreatment. Among these are the 1966 International Covenant on Civil and Political Rights, the 1950 European Convention on Human Rights, the 1978 American Convention on Human Rights, and the 1981 African Charter on Human and People's Rights. Those, which address the combating of torture in particular are the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1987 European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment; and the 1985 Inter-American Convention to Prevent and Punish Torture. Their common prohibition of torture and ill-treatment draws from its status in human rights law. Nothing can put it aside or limit this restriction. States may not place individuals at risk of torture or ill-treatment, such as through extremely long and incommunicado detention or depriving a detainee prompt access to court. Whatever the status of the suspect, this prohibition operates and stands (Foley).
These agreements constrain State officials from applying or tolerating torture or other inhuman treatment on any person (Foley 2009). An order from a superior may not justify torture. States must make sure that all acts of torture are treated as criminal offenses, investigate them and make their perpetrators account for their acts. The torture or other ill-treatment of any person who is in the power of another country or party is banned as a war crime under the humanitarian laws of armed conflict. Common Article 3 of the Geneva Conventions and other provisions of all four Conventions and the protocols convey this prohibition. Torture is likewise considered a crime against humanity when performed as part of a strategy against civilians. Article 7 of the Rome Statute of the International Criminal Court places torture and rape within its jurisdiction (Foley).
The United Nations Convention against Torture
From its adoption in 1984, it had 130 participants by August 2002 (Foley 2009). They are to perform universal jurisdiction, whereby they take suspected perpetrators of torture into custody, inquire into the allegations and submit the suspects to the prosecuting authority. States must likewise cooperate among themselves in bringing torturers to justice. Statements taken with torture as a means may not be used or invoked in evidence against the victim, who keeps the right to redress and adequate compensation. States are also obliged to take efficient steps in combating torture. They must acquaint their law enforcers and medical teams and other persons involved in the custody, interrogation or treatment of detainees about the prohibition of torture and ill-treatment. They must actively investigate acts of torture and ill-treatment even without formal complaints about these. Individuals must know about their right to complain about such acts and demand investigation and protection from intimidation and ill-treatment. Other cruel, inhuman or degrading acts or treatment or punishment fall within the purview of these prohibition even if they do not constitute or amount to torture (Foley).
Boumediene v Bush Landmark Ruling
The first habeas corpus case for detainees held at Guantanamo Bay was brought to a federal court in February 2002 (CRC 2008). The Bush administration was at first successful in arguing that the detainees did not have lawful access to federal courts regarding their detention. Two years later, in Rasul v Bush, 03-334-542 U.S. 466, the Supreme Court allowed the detainees' habeas cases to move on under federal statue. Congress counteracted by passing the Detainee Treatment Act in 2005 and the Military Commissions Act in 2006. These removed habeas jurisdiction from "enemy combatants" held in U.S. custody and replaced it with a very limited review by the Court of Appeals for the District of Columbia. It was the only recourse opened to those who would challenge the classification of "enemy combatants." Those who challenged argued that the Columbia Status Review Tribunals at Guantanamo was incapable of correcting the host of violations (CCR). But in Boumediene v Bush, 554 U.S. _; 128 S. Ct. 229, 2008 WL 2369626;200 U.S. LEXIS 4867, the Supreme Court ruled as unconstitutional the Military Commissions' blocking federal courts from hearing the claims of Guantanamo detainees (Supreme Court of the United States 2008). It decided that the petitioner-detainees had the constitutional privilege of habeas corpus and were not barred from seeking it or invoking the Suspension Clause's protection for being designated as enemy combatants or present at Guantanamo, pp 8-41. The Tribunal also found the DTA's procedures were inadequate and ineffective substitute for the writ, making its suspension by the writ unconstitutional, pp 42-64. In addition, it did not find prudential barriers to habeas review, pp 64-70. (Supreme Court of the United States).
The decision focused on the fundamental principle underlying the writ of habeas corpus, which allows the courts to check the abuses of executive power, pp 8-15 (Supreme Court of the United States 2008). It was the intention of the colonial founders as "a fundamental precept of liberty." Central to its protection is the court's duty and authority to call the jailer to account for the denial of that protection, pp 8-15. It emphasized on the separation of powers among the three branches of government as basis for its opinion and decision. It strongly criticized the President's and Congress' declaration that the U.S. Constitution did not apply to Guantanamo because it is outside the U.S. sovereign territory. The Suspension Clause applies to Guantanamo non-citizen prisoners determined as "enemy combatants" in an unfair proceeding; the exclusive control of the U.S. over Guantanamo; and the lack of credible arguments that habeas proceedings would obstruct military missions in Guantanamo. Individuals in Guantanamo had the right to challenge their detention under the Suspension Clause. This ruling may apply to similar cases at U.S. detention facilities anywhere else in the world (Supreme Court of the United States).…[continue]
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