The Military Commissions Act -- All Hail the Fuhrer

The passage of the Military Commissions Act (H.R.6166 / S.3930) has me and many others in the blogoshphere completely outraged.  The reports on the bill were vastly different after its passage, than during the legislative process, and was supposed to be a bill that interpreted the Geneva Conventions.  Not that the Conventions needed interpreting, but this bill originally wasn't as bad as it is now.  Following the initial reports on this bill, I spent the better part of yesterday and today looking through this bill and related documents, hoping that the reports were wrong, and everyone was flustered for no reason.  Well, this bill is that bad, if not worse.  The United States as we knew it dies the day the Bush signs it into law sometime this weekend, or early next week.

I encourage everyone to read this bill, there's more stuff in there that I am covering in this post.  Here's some links: html version or pdf. Also for the Geneva Conventions there's genevaconventions.org

This bill stems from Bush's desire to put the concept of a unlawful enemy combatant into law, since terrorists don't neatly fit the combatant status laid out in the Geneva Conventions.  Unlawful combatants are:

948a(1)(A)
''(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
''(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 

So, an unlawful combatant is either: not a lawful combatant, or anyone, past, present, or future, the President or Secretary of Defense so decrees.  If they so desired, they could classify George Washington as an unlawful combatant.  A lawful combatant is:

948a(2)
''(A) a member of the regular forces of a State party engaged in hostilities against the United States;
''(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
''(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

Pretty much how the Geneva Conventions define a combatant, with one glaring exception.  The Conventions don't protect only state or governmental forces, they protect anyone fighting in a conflict, regardless of state or government allegiances.  How the Conventions define a combatant:

Convention I Art. 13
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
 (a) that of being commanded by a person responsible for his subordinates;
 (b) that of having a fixed distinctive sign recognizable at a distance;
 (c) that of carrying arms openly;
 (d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

The Conventions say "Party to the conflict," and this bill is saying "State party engaged in hostilities."  This bill denies Geneva protections to all non-state forces.  I can see an unlawful combatant category in some cases, like in the case of carrying arms openly or not wearing a uniform, but saying all non-state forces are unlawful isn't right.  This denies any revolutionary forces protections they are granted, in the event that the United States fights them.  But it's all moot since the President can put together a tribunal to determine anyone unlawful.  This is just the definition of a combatant though. Who the Conventions apply to (and rights given) are laid out in Article 3:

Convention I Art. 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
 (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
  (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
  (b) taking of hostages;
  (c) outrages upon personal dignity, in particular humiliating and degrading treatment;
  (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
 (2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

Creating a new category of combatant is not necessary since the Conventions say clearly "Persons taking no active part in the hostilities."  That's anyone not fighting at that moment.  Saying that someone isn't entitled to Geneva protections because they are "unlawful" is flat out wrong.

This bill also creates military commissions (to be U.S.C Tile 10 Chap 47A) to railroad detainees into guilt.  The military commissions are structured very closely to that of courts-martial, but with fewer rights for the accused.  The largest discrepancy is the suspension of habeas corpus for accused unlawful combatants.  People can be held forever without being charged of anything, and without appeal if they are classified as an unlawful combatant (it specifically says in 948c that "Any alien unlawful enemy combatant is subject to [...] military commission[s]," but later we see that there are cases where commissions do not only apply to aliens).  If a person is eventually charged, and does appear before a military commission, the Geneva Conventions do not establish rights (948b(g)).  Also the, 948b(1), accused does not have the right to a speedy trial, and self incrimination exists.  All other provisions from U.S.C Title 10 Chap 47 (the Uniform Code of Military Justice, or UCMJ) are followed.

And now the section on crimes triable my military commissions (950v(b)).  Not only are alien unlawful combatants subject to commissions, but certain crimes which a normally lawful combatant or Geneva protected person may commit.  Some of these crimes are very very very vague, and can apply to anyone.  Some seem reasonable, such as: murder of protected persons, attacking civilians, attacking protected property, etc.  Two sections thjough, are downright scary:

950v(b)(25)(A)
Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.

and

950v(b)(26)
Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.

These paragraphs together can lump together any person who is against the Bush Administration, regardless of combatant status.  Just using "allegiance or duty to the United States" is powerful in that it is so completely vague, that all someone needs to do is say "You've violated your duty to the U.S.  Come with me, we have a place for people like you."  Any criminal can fall under this language, as can anyone who has ever skated out of jury duty, not voted, never voluntarily joined the military, or never became a civil servant.  This makes me completely sick to my stomach.  When I joined the military I made an oath to "uphold and defend the Constitution of the United States of America against all enemies, foreign and domestic."  I may be a vet now, but I never renounced that oath.  And here I sit now, waiting for the day the Fuhrer decides to act on this language.

To those from the right (Bush supporters, that is. I know some from the right have been warning of these things for some time now), who support this bill, I say this: go back and read the Constitution, and read the Declaration of Independence, read the Geneva Conventions, look back at our history.  This bill, and others (warrantless wiretapping, USA PATRIOT Act, the bill that passed yesterday abolishing the separation of church and state, et al), have completely destroyed everything this country stood for, shredding the Constitution, and giving the middle finger to everything that made this a great country.  The reason why we have had separation of powers, was to ensure this country never lives under tyranny again (remember the Revolution?).  Congress has failed us in granting Bush enough powers to become dictator of this country, and now he has the ultimate power of determining who is an enemy of the state.  Also, those on the right that believe that none of this applies to you because you support Bush, you're safe for now, but just wait until he proclaims full dictatorship.

Who voted for this bullshit?
In the House:
All Republicans except: Roscoe Bartlett (MD), Wayne Gilchrest (MD), Walter Jones (NC), Steven LaTourette (OH), James Leach (IA), Jerry Moran (KS), and Ronald Paul (TX)
And the following Democrats:  Robert Andrews (NJ), John Barrow (GA), Melissa Bean (IL), Sanford Bishop (GA), Dan Boren (OK), Leonard Boswell (IA), F Boyd (FL), Sherrod Brown (OH), Ben Chandler (KY), Robert Cramer (AL), Henry Cueller (TX), Arthur Davis (AL), Lincoln Davis (TN), Thomas Edwards (TX), Bob Etheridge (NC), Harold Ford (TN), Barton Gordon (TN), Stephanie Herseth (SD), Brian Higgins (NY), Tim Holden (PA), James Marshall (GA), Jim Matheson (UT), Mike McIntyre (NC), Charles Melancon (LA), Michael Michaud (ME), Dennis Moore (KS), Collin Paterson (MN), Earl Pomeroy (ND), Mike Ross (AR), John Salazar (CO), David Scott (GA), John Spratt (SC), John Tanner
(TN), and Gene Taylor (MS)
In the Senate:
All Republicans except: Lincoln Chafee (RI)
And the following Democrats: Thomas Carper (DE), Tim Johnson (SD), Mary Landrieu (LA), Frank Lautenberg (NJ), Joeseph Lieberman (CT), Robert Menendez (NJ), Ben Nelson (NE), Bill Nelson (FL), Mark Pryor (AR), John Rockefeller (WV), Ken Salazar (CO), and Debbie Ann Stebenow (MI)    

But this isn't the final nail in the coffin, as long as there's still people out there willing to defend the Constiution, and the spirit of this country -- the coffin will never be sealed.  Edmund Burke once said, "All that is necessary for triumph of evil, is that good men do nothing."  We just need to get the good men together.