[quote]LBRTRN wrote:
I’m not a legal expert, I’ve read the act and I think I understand it, but who knows…I could be totally off. However, I keep reading things that seem to contradict your position.
According to Briefing Room | The White House,
“convicted detainees would also be entitled to an appeal to the U.S. Court of Appeals for the D.C. Circuit, regardless of the length of their sentence. The Supreme Court could review decisions of the D.C. Circuit.”
Convicted detainees. I want to know what recourse detainees have prior to being charged. Because according to everything I’ve read on the subject, those arrested as alien unlawful combatants (the administration being the sole arbiters of who is and isn’t an unlawful combatant), cannot, because of this act, file a writ of habeas corpus.
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I’ve yet to find a foriegn combatant, pre-9/11, ever allowed habeas corpus and access to our couts. Generally you’re detaining combatants till the war is over. Or, if the military is satisfied that they will not take up arms again, is released.
If a lawful combatant (uniform, insignia, of an actual nation) commits a crime during a war, he is tried by a military tribunal. Note, that our own soldiers are court martialed.
In this case we’re talking about alien unlawful Combatants (no nation, no-uniform, no insignia, shoots from hospitals, mosques, etc.). This will be the jurisdiction of these military commissions. The 2006 act, in short, deals with the actual Military Commission, and the appeals process for it’s VERDICTS.
The Detainee status review, and appeal process, is set forth in the Detainee Treatment act of 2005. That’s right, this process was put into law a year ago. A Combatat Status Review Tribunal will determine a detainees status. It may rule to charge (not convict, that’s the Military Commission) a detainee as an alien unlawful combatant. The DC Circuit Court is the body designated to hear the appeal of the detainee’s status, after the CSRT has made it’s charge.
Here is the actual wording of the Act, that sets the DC Circuit Court up as the body to review a Detainee’s STATUS, upon appeal.
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien–
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of–
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government’s evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
The following gives a good idea of how it works. Feel free to use the link I’ve provided for the full article.
http://kyl.senate.gov/record.cfm?id=248846
WASHINGTON, D.C. - U.S. Senator Jon Kyl today co-sponsored, along with senators Lindsey Graham (R-SC) and Carl Levin (D-MI), an amendment to clarify the review process for detainees held at Guantanamo Bay, Cuba, and limit the access to U.S. courts of non-citizen terrorists held there.
?As a society, we have an obligation to provide a meaningful legal process for prisoners in the war against terrorism - even to those who would kill us all in an instant if given half a chance,? Kyl said. ?That commitment is one of the things that makes America worth defending. But it is by no means the same thing as giving foreign terrorists all the rights and privileges of American citizens, particularly when we?re in a state of war.?
The amendment would codify the traditional assumption, overturned by the recent Supreme Court decision in Rasul v. Bush, that the federal habeas corpus statute does not grant aliens detained outside the United States as enemy combatants the unfettered right to petition U.S. federal courts. The amendment would, instead, allow limited judicial review of military courts? decisions at Guantanamo.
A Combatant Status Review Tribunal (CSRT) system now allows detainees at Guantanamo to challenge their designation as enemy combatants, and the status of each is assessed annually by an Administrative Review Board (ARB) that includes three disinterested military officers; one is a judge advocate senior ranking officer who serves as president of the tribunal. Each detainee is assigned a military officer as a personal representative who assists in hearing preparation. Detainees have the right to testify before the tribunal, call witnesses, and introduce any other evidence. The ARB makes a recommendation to a Designated Civilian Official (DCO) - currently Acting Deputy Secretary of Defense Gordon England - who makes the final decision whether to release, transfer, or continue to detain the individual. Those determined not to be enemy combatants are transferred to their country of citizenship or other location consistent with domestic and international obligations and U.S. foreign policy.
This process meets the conditions of the Geneva Convention, despite the fact that members of Al Qaeda do not qualify for Geneva protections for multiple reasons. The amendment, offered to the Department of Defense Authorization bill, strengthens the system by forbidding the tribunals from considering information obtained via undue coercion, and by directing the Secretary of Defense to notify the relevant Congressional committee of procedural modifications within 60 days.
The amendment provides a CSRT appellate procedure, granting exclusive jurisdiction to the US Court of Appeals for the District of Columbia Circuit to review the validity of any decision of the DCO. For an enemy combatant to be able to present an appeal, he must be detained by the Department of Defense at Guantanamo Bay, and a CSRT must first have been conducted.