Military Commissions Act Of 2006
MILITARY COMMISSIONS ACT OF 2006 -- (House of Representatives - September 29, 2006)
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Mr. NADLER. Mr. Speaker, I am not going to get into any of the torture aspects of this bill, but I do want to address the due process aspects of this bill.
The distinguished chairman says we have created a system of justice with plenty of rights. Well, we have created two systems of justice. First of all, it doesn't have so many rights. You can appeal from the military tribunal, but the military tribunal can hear hearsay evidence and it can hear evidence obtained under coercion, if not torture. That is debatable.
But the appeal is only on matters of law, not fact. So if it is determined that it is you and not someone whose name is similar to you who is the unlawful enemy combatant by the military tribunal, you can't appeal that decision. You can only appeal the process of that decision. The civilian courts have nothing to say on questions of fact. That is number one.
Number two, much more important, the President under this bill has the ability, or Federal bureaucrats, for that matter, to point their finger at anybody in this country or abroad, as long as he is not a citizen, and say you are an enemy combatant because I say so; and because I say so, we are going to throw you in jail forever and you have no right to have a military commission. We may put you before a military commission, in which case what they were talking about applies. We may put you before a combat status review tribunal, in which case what they were talking about applies; but there is no right to do that.
The bill specifically says that this whole process is exempt from the speedy trial requirements of law. So you may be in jail forever because your name was similar to the real guy.
The bill assumes that we need not have the normal protections that we have had since the Magna Carta for people to at least say habeas corpus; bring the body, sir King, before the magistrate to make sure you have the right guy, to make sure there is some basis for holding this person and depriving him of liberty.
There is no such right. This person can be in jail forever without ever going to a military tribunal, without ever going to a combat status review tribunal, without anything.
This, Mr. Speaker, is irrelevant and unconstitutional. This is un-American. It is against all our traditions, to be able to say that people have no rights. It specifically says you have no right to go to any court, a military tribunal or a regular court, to protest that you are being tortured or to allege that you are being tortured. You can't get into court. If you are being tortured, too bad. No one knows about it.
Secondly, you cannot go to court to say they got the wrong guy, because cops never make mistakes, no one ever makes a mistake.
And, finally, the bill is also unconstitutional because it sets up two systems of justice. If you pick up two people in New York, one of them is a citizen, they go to the Federal court, and you accuse them of being unlawful enemy combatants, they go to the regular American system of justice. One is awaiting citizenship but is a permanent resident, he goes through this other. He has no rights and can be in jail forever. That is clearly unconstitutional. It is a denial of equal protection.
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Mr. NADLER. Mr. Speaker, will the gentleman yield?
Mr. BUYER. I yield to the gentleman from New York.
Mr. NADLER. It is supposed to be done by a tribunal under article V, but the President claims the power. We have never held such a tribunal.
Mr. BUYER. Wait a minute. Reclaiming my time, please do not come to the floor and make things up. As a JAG officer in the first Gulf War, I wrote the practice and procedures for article V tribunals. I participated in the tribunals to determine status, a person's status. The President of the United States does not participate in that process.
So, please, don't be silly and just make things up.
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Mr. NADLER. Mr. Speaker, this bill says the term ``unlawful enemy combatant,'' means, one, a person who is engaged in hostilities or who is purposefully and materially supportive of hostilities against the United States; or, two, a person who has been determined to be an unlawful enemy combat status, review tribunal, or another competent tribunal established under the authority of the President.
In other words, you could become an unlawful enemy combatant because you are adjudged by a tribunal; or, one, because the President says so without a tribunal. Otherwise, this language has no meaning. That's page 3 of the bill.
And if you look at page 93 of the bill, you find that no court shall have jurisdiction to hear an application for writ of habeas corpus or for an application relating to any aspect of the detention transfer, treatment, trial, or conditions of confinement of an alien who is an unlawful enemy combatant.
In other words, anyone other than the citizen can be accused by the President or by any bureaucrat of being an unlawful enemy combatant, thrown into jail, and get no benefits.
We have heard repeatedly that we are giving rights to terrorism. No, we are not. We are not trying to give rights to terrorists. We are saying that before someone is accused of rape or murder, you don't string them up; you first give them a trial and then string them up.
And what they are saying, what this bill says is the President or his designee can designate someone as an unlawful enemy combatant, and, with no trial, no hearing, no status review, no nothing, throw them in jail forever. That is un-American. It is worse than what we rebelled against the King of England for in 1776, and we should be ashamed of ourselves.
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Mr. NADLER. Mr. Speaker, the radical nature of this bill is that, as the gentleman from Michigan said, anybody picked up in Chicago can be subject to this bill. The President can determine unilaterally, look at paragraph 1 on page 3, that someone is an unlawful enemy combatant, or they can put the person before a tribunal, paragraph 2 on page 3, to decide if he is an enemy combatant. But you don't have to have a tribunal.
A little later it says that military tribunals are not subject to the speedy trial rule. So someone can be determined by the executive branch to be an unlawful enemy combatant, someone in America, never have a trial, never go before a combat status review tribunal, never go before a military commission, have none of the rights everybody is talking about, and be held in jail forever. That is wrong.
Secondly, the gentleman who was debating me before said soldiers have never had rights to habeas corpus. Certainly, if you pick up someone on the battlefield with a rifle in his arms, he shouldn't have habeas corpus. But if you pick up somebody in Chicago or New York or Los Angeles, who is to say that person is an unlawful enemy combatant? If you pick up somebody in Chicago or New York and say he is a murderer or a rapist and you want to hold him in jail until you can have a trial, you go before a judge and say, here is our evidence. There is some evidence that he is, in fact, a murderer or rapist to justify keeping him in jail.
Under this, though, you say he is an unlawful enemy combatant and that's that. You never hear from him again. That is against all our traditions. It makes the President a dictator because someone who claims the power to put someone in jail forever, with no hearing, no evidence, and no recourse, is a dictator. And on page 93 of the bill it says that no court shall have jurisdiction to entertain habeas corpus, which is simply a request to say show me why you are holding me in jail, or to entertain any action saying, Hey, you are torturing me, about the condition of confinement. So you can take this person because the President says so, put him in jail, subject him to any torture or whatever, and whatever you write in the law doesn't matter because no court can hear the case. There is no one to bring the complaint before it. That is wrong and it is insupportable.
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