Section 950j. The Bill criminalizes any challenge to the legislation

[Jcrowley]

In section 950j. the bill criminalizes any challenge to the legislation's legality by the Supreme Court or
any United States court.

"No court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."


The Bush administration is preemptively overriding any challenge to the legislation by the Supreme Court.

[whistle]

1. That makes it unconstitutional, which means in must be overturned

[lonestarnot]

34. So true! And here's where the rub a dub dub comes in and could become

something more serious than judicial review. Can you say civil war? Waiting and watching.

[Thickasabrick]

2. That's why this is a bullshit bill that will be struck down. They can't

make a law to shut out the supremes - they would have to have a constitutional amendment to do that.

[goddess40]

3. actually it would mean we'd have to burn the constitution

because to eliminate the third branch of government would mean the USA no longer exists

[readmoreoften]

5. hey, better than burning a flag, right? /nt

[Jcrowley]

7. Unlikely

Not impossible but very long odds on this bill being struck down. One of the cornerstone strategies of the far right over the last 25 years has been to methodically saturate the higher courts, including The Supremes, with arch-conservative judges so as to rearrange the entire terrain of the US judiciary. Don't have them with me at the moment but if you were to crunch the physical numbers of how many benches have gone over to ultra-conservatives since Raygun went at this with a vengeance you'd be dumbfounded.

The rules have changed and Congress has rolled over.

[Selatius]

13. It'll have to be challenged to be struck down

If you can't challenge it in court, then the only way is to repeal it.

[readmoreoften]

4. For all those folks who say it's going to be struck down...

Who's going to do the striking? The congress that just voted to support it or the supreme court who will never get to rule on it. And even if they do get to rule on it, won't it take years to get to the table. And Justice Stevens is 86 years old.

[Poll_Blind]

8. My feelings against the 12 who didn't permit a filibuster are getting...

...harder and harder.

PB

[StellaBlue]

14. Exactly.

And you also might point out that these are the same justices who appointed * to begin with, only with two more, radical members.

[Poll_Blind]

16. .

x( <--- Face of Ultimate Anguish. This is just surreal.

PB

[Thickasabrick]

36. It will be challenged within days.......

http://www.guardian.co.uk/international/story/0,,1884314,00.html

[readmoreoften]

52. It says that the gitmo lawyers are going to litigate immediately.

I'm sure they are. My question, though, is when will the Supremes hear the case? I have a strong feeling that Kennedy won't uphold this monstrous vote, so I hope there will be an immediate SCOTUS ruling against this. I haven't heard any indication that such a speedy overturn would be possible, though.

Anyway, thanks for the link.

[mogster]

55. Note the wording

"The Bush administration yesterday faced a raft of legal challenges to a sweeping new regime for Guantánamo that would deny court oversight to detainees in the war on terror, and would bar prosecution of US personnel for war crimes.
Mr Bush is expected to move within days to sign into law proposals for the treatment and trial before military tribunals of the detainees."

Mister Bush. Not president Bush.
That fits my own sentiments exactly.

[burrowowl]

42. It won't be struck down under this Congress

It is a sad that this bill was presented much less voted for, it shows the reigning mentality.

[Poll_Blind]

6. Full text of 3930 here. (didn't see many links floating around so...)

Right here. This is the one that passed the Senate, the exact one that will go into law.

  Read it, or don't. But weep either way.

PB

[originalpckelly]

9. What may I ask are the "other purposes"?

"To authorize trial by military commission for violations of the law of war, and
for other purposes."

HMMMM. FREAKING SCARY.

[Selatius]

15. Y'know, bills are ruled unconstitutional if they're too vague for a reason

So that the bill, when it becomes law, cannot be stretched or twisted for purposes other than what it originally stated.

That thing is 38 pages long and is full of deadly legalese. I'd need a lawyer to go through that bill with me.

[Poll_Blind]

17. Ah, and you're right. BUT it will take gross misapplication of the...

...law, and probably multiple times, before such a call rises.

PB

[davekriss]

53. Match that to the Haliburton contingency

"To authorize trial by military commission for violations of the law of war, and
for other purposes."

Recall the "other programs" in the $385 million Haliburton contingency? Haliburton is to be ready on a moment's notice to build detention centers to house illegal immigrants and "for other programs". Match that up to the military commissions for "other purposes" and perhaps we have reason for detention centers "for other programs".

Hey, I'll call dibs on a bottom bunk! (See ya' in the camps, folks.)

[iconoclastic cat]

10. So, that's it. The U.S. is over. nt

[annabanana]

11. Just how did the separate court systems evolve?

(The military & civilian)? What are the walls between them, are there any places where they work together? Has the pres ALWAYS had the top spot in the military one as commander in cheif?

(I need a little history & a little law here)

[Poll_Blind]

18. This isn't the detailed, historical answer you're looking for or...

...deserve but:

  I don't think that those court systems will evolve. I believe one will consume the other. Like a cuckoo's egg, always laid in the nest of another bird, once the young hatches it will push to it's death anything it touches. Eggs, other chicks from the real parent, it doesn't matter. There's only enough room for one of them.

PB

[Jcrowley]

24. Very big and unanswerable questions

Military Commissions

President Bush's executive order of November, 2001, had nothing directly to do with the UCMJ or courts-martial. The order allowed the creation of another form of military court, called the military commission. According to the 2001 Law of War Workshop Deskbook (The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia), they have concurrent jurisdiction with general courts-martial, and are often used to prosecute war crimes. According to the Deskbook, "In theory, could provide very limited evidentiary and procedural formality ... and a very streamlined appeal process."

In ex parte Quirin (317 US 1 <1942>), the U.S. Supreme Court upheld the use of military commissions for the trial of German agents landed in the United States by U-boat, and who infiltrated inside the country as spies. The Court denied the accused's request of a writ of habeas corpus, finding that the President had been granted the ability to convene the commission by Congress, and that the alleged offenses fell under the law of nations as war crimes (espionage and conspiracy to commit acts of sabotage and terror). One of the agents contended to be a U.S. citizen by way of naturalization of his parents. The Court did not take up the issue of his citizenship, since a citizen who adheres to the enemy and then returns to the U.S. as an agent is acting in violation of the law of war, regardless of his citizenship.

The Court found that the Congress has the power to allow the President to convene a military commission, and that the President then had the power to actually convene a commission. A lawful combatant had to be captured and treated as a prisoner of war according to international convention. An unlawful combatant, such as a spy or a soldier operating without identifying marks, could be tried by a military commission. The practice used during the Second World War had also been used during the Civil War and during the Mexican War.

The question that remains for us, then, is this: is a terrorist, who is not a member of an organized national armed force, an unlawful belligerent in the context of the law? It would seem that taking up arms against a nation and its people is an act of war, whether that war is declared or not. By international convention, war is waged in a certain way, by uniformed soldiers. This is the way of "civilized warfare." Warlike actions taken by non-uniformed soldiers are taken by unlawful belligerent. It can then be argued that an entire network of terrorists, like the al Qaeda network of Osama bin Laden, is an entire network of unlawful belligerents. Based on ex parte Quirin, these people are subject to military commission.

This appears to answer the question of "can it happen," in the legal sense. The question remains, should it be? This is a question that will be answered as these commissions are convened, and we see who is tried under them, what their sentences are, and the kind of access the public has to the proceedings.

http://www.usconstitution.net/consttop_milj.html

We are in relatively new territory here. My personal view is that this bill will be challenged immdiately and often but will, in some form, remain relatively intact. I'm sure Michael Ratner and his crew are on this 24/7. To have confidence in the checks that we seem to have had faith in is at this point I think more than a little naive.

[Jack Rabbit]

12. I think you used the wrong word, Mr. Crowley

But you got my attention.

This means that the law cannot be challenged in court. Of course, they tried that with legislation challenged in Marberry vs. Madison, and Chief Justice Marshall emphatically struck it down. In other words, the courts will ultimately decide whether it can be challenged in court.

It does not make it a criminal offense to say, "This Military Commissions Act stinks."

This Military Commissions Act stinks.

[Jim Sagle]

20. Bzzzzztttt...wrong answer!

A Homeland Security Information Squad is on its way to clear up your misapprehensions. It would be best if you left the door unlocked.

[rog]

26. Does this refer to the law itself, or to tribunal decisions?

This Military Commissions Act stinks.

Absolutely ... but ...

This means that the law cannot be challenged in court.

I'm not sure this paragraph refers to the law itself. Am I right that, if you read the entire paragraph, it appears to refer to the finality of decisions of a military tribunal, not to the law itself?

Not that this makes the law any better, or excuses those who voted for it.

.rog.


950j. Finality of proceedings, findings, and sentences

‘‘(a) FINALITY.—The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President.

‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILI-TARY COMMISSION PROCEDURES AND ACTIONS.—Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

[Jack Rabbit]

31. Ok, your characterization is much better than mine

Either way, a private citizen will not be prosecuted for opposing a specific decision of a military commission or the concept of a military commission in general or any other provision of the Military Commissions Act.

When I say the thread headline, I thought this might be an opportunity to domonstrate some civil disobedience on the web, but that's not the case. I am so disappointed.

[Jcrowley]

37. As with the entirety

of this bill, I've read the whole thing twice as some form of punishment, we are dealing with broad definitions and vague language. I actually think, or like to think, that your interpretation of this is accurate but I see the current political terrain as one that changes the actual practice of this bill into a very random and punitive measure.

Oh and threats:

Gonzales Cautions Judges on Interfering
By THE ASSOCIATED PRESS
Published: September 29, 2006


WASHINGTON (AP) -- Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. ''The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,'' the attorney general told a conference on the judiciary at Georgetown University Law Center.

''Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,'' Gonzales said.

And he said the independence of federal judges, who are appointed for life, ''has never meant, and should never mean, that judges or their decisions should be immune'' from public criticism.

http://www.nytimes.com/glogin?URI=http://www.nytimes.com/aponline/us/AP-Gonzales-Judges.html&OQ=_rQ3D2Q26orefQ3Dslogin&OP=37c7b8e8Q2FmwlQ2Fm-TUpyTTDhmzFTQ22o,Q22lm!pmQ7DQ3CQ23ATQ22Q5BzolpQ23R!-Q25lpH8Ddo

[rog]

54. I agree with you 100%.

... I see the current political terrain as one that changes the actual practice of this bill into a very random and punitive measure.

And I agree with your observation about the vagueness written into it.

I've been very depressed and angry about this, especially since I read that NY Times article on Gonzales' statement, which I found stunning. As a matter of fact, I mentioned to a friend of mine who is applying for law school that she just saved a bundle of money. No need to study law now, since Gonzales has made it so simple ... in full sarcasm mode, of course.

I don't know why Gonzales' statement is not being discussed more by the talking heads.

.rog.

[readmoreoften]

56. what was his statement? i missed it. /nt

[rog]

59. Gonzales is quoted a couple of posts above ...

... in the post to which I responded, Jcrowley excerpted and linked the AP report, "Gonzales Cautions Judges on Interfering."

.rog.

[Poll_Blind]

19. This really does make the Patriot Act look like a walk in the park. n/t

PB

[Karenina]

27. And WHO remembers that after Congress passed

that BULLSHIT without having read it when it expanded EXPONENTIALLY overnight, the backroom assurances that the most egregious provisions would be revisited and deleted... DID THAT HAPPEN??? DID I MISS SOMETHING???

[Poll_Blind]

29. Oh God, I remember that. You're right. "We can always overturn it...

...later!" What bullshit. I remember that, clearly. I wish I kept whiskey in the house.

PB

[chill_wind]

41. And vast parts of it about as thoroughly debated and openly scrutinized

and publicly aired by all responsible before it got rammed through at the zero hour right before another much awaited recess-- like that Christmas one all those eons ago.

When DID the Dems get the final version of this bill?
Did this even come out in the debate, and did I just miss it?

[Poll_Blind]

44. It got 10 whopping hours of debate, IIRC. This is just like they did...

...with The Patriot Act, more bullshit, the same missteps and the same "we just got fucked" feeling.

PB

[Justice Is Comin]

21. I don't care what anyone says, no law can preempt the Supreme Court.

I don't care how it's written or how clever they may think they are with the legalese. That is absurd.

The Supreme Court is a separate and equal branch of government. It is the ultimate authority that tells the president what he can and cannot do. The Supreme Court must uphold the tenets of the constitution not revised by constitutional amendment.

Anyone can step in as the injured party and bring the claim as a plaintiff to a lower district court. The court is obligated to rule on the merits of the argument based on case law.

The writ of Habeas has never been suspended, it is permitted in only two very distinctly clear exceptions--both of which are patently absurd as justification when the congress approved this bill.

Once a lower court has ruled in favor of the unconstitutionality, it can be appealed to the next highest court. Unless the ruling is struck down, it is every plaintiffs right to petition to the Supreme Court. The Supreme Court has the same burdens of constitutional case law to hear the case.

This issue is so grave and aggredious, the Supreme Court may make history and bring its own case.

I'd bet my last dollar on it, this is going to be in the Supreme Court and found unconstitutional.

[Poll_Blind]

23. The Supreme Court will not bring it's own case. Not this Supreme Court.

  You're right, this legislation is Unconstitutional. But someone has to bring a case and the Supreme Court has to accept it. There are still other things in the way, but just those two things, given the current composition of the court, are not certainties.

PB

[Thickasabrick]

40. There will be thousands of challenges - hell, the ACLU will do it

just on principals. After November as Teddy said, we can be done with this "bullshit"

Here's a link to the Guardian article talking about the challenges

http://www.guardian.co.uk/international/story/0,,1884314,00.html

[Poll_Blind]

43. Look I trust Ted Kennedy but do you remember when the "Patriot Act" was...

...passed? I recalled, once she mentioned it, that the same day the thing passed there were senators already talking about how there were "sunset provisions" and so forth to make sure the thing didn't "get out of control". Well, it was renewed for 6 months in 2005 and it was just renewed again in March of this year, by the senate 89-10.

  I'm not holding my breath, man.

  This legislation is going to be with us for a long while.

Hat tip to Karenina for jogging my memory.

PB

[Jcrowley]

28. Unlikely

Don't bet your last dollar on this but if you do let us make a friendly wager.

A :toast: in the hopes that I would lose.

In ex parte Quirin (317 US 1 <1942>), the U.S. Supreme Court upheld the use of military commissions for the trial of German agents landed in the United States by U-boat, and who infiltrated inside the country as spies. The Court denied the accused's request of a writ of habeas corpus, finding that the President had been granted the ability to convene the commission by Congress, and that the alleged offenses fell under the law of nations as war crimes (espionage and conspiracy to commit acts of sabotage and terror).

[Justice Is Comin]

35. Ah yes, they may have cover on the military commissions

or tribunals.

But in their attempted cleverness they opened the same fate up to civilians of the United States by their definition and legalese descriptive catch all ass covering of "enemy combatant."

This is going to receive unparalleled pressure from all quarters and the Supreme Court is going to be mercilessly derided by it's own sitting on the bench if this is not heard, let alone all the other legal opinions already flatly making this unconstitutional--Justice O'Connor providing the first.

They hooked their britches on their own petard.

I'll stand firm. Toast back atcha though.

[Straight Shooter]

22. Section 950j. should properly be called the War Criminals Protection Act.

What a self-serving little piece of work that is.

[Recursion]

25. Luckily, it's meaningless

The court has repeatedly struck down portions of law that limit the courts' ability to hear cases. This will last about 30 seconds.

[Poll_Blind]

32. Ok, 30 seconds are up. How about 2 years or longer? The evil's...

...not going to go away just because it's evil or even because it's illegal. Who's going to save us from this, and when?

  Please don't think I'm frustrated with you personally but your sentiment, while shared by myself and others, has no grounding in reality. If the Supreme Court were composed of a bunch of pro-Constitution enthusiasts, it might be different. But they're not going to do anything about this one until someone challenges it- and then still they get to decide whether or not they accept it. And even if they do, their ruling (because of the case) might not reflect what we expect.

  To understand my point in that last sentence, see Dred Scott v. Sanford.

PB

[Thickasabrick]

39. Agree

[alfredo]

30. What are the penalties for defiance of this law?

[Poll_Blind]

33. That's up to Ashcroft to decide, isn't it? Maybe just crush you son's...

...testicles in a vice until you admit relations with Emmanual Goldstein.

PB

[alfredo]

38. They will be pumping the victims through those courts and

right to the death chamber.

[Warren DeMontague]

49. Ashcroft? Don't you mean Gonzales?

Ashcroft was LAST shitty term.

[Poll_Blind]

50. Sorry, LOL, you're 100% correct. When I think of Attorney General...

...I just can't get the image of Let The Eagle Soar out of my head and thus, Ashcroft.

  BTW, I don't recommend clicking on that link, this thread being about torture and all.

PB

[Warren DeMontague]

51. Seen it once.

Have Absolutely NO NEED to go there again! :scared:

[Warren DeMontague]

45. Another reason why this thing doesn't stand a chance.

The GOP may not give a shit about the Constitution, but they can't negate it by fiat. At least not yet.

[Jcrowley]

46. I'm not sure I understand

Of course they can and they did as they've been doing on a weekly basis since the fiat decreed Bush as Peerezidente'.

This bill will be law next week.

[Poll_Blind]

47. I think he may be unclear on a point I was, for a great while, unclear on:

  The Senate can introduce into law the most heinous, unConstitutional resolutions they want. They could pass a resolution saying saying up is down if they chose to do so. Anything. Once the President signs it, it becomes The Law. To nullify one of these heinous laws, the courts have to decide that it's unConstitutional or in some other way inapplicable.

  I used to think that Congress had some sort of restraint on it prior to passing these resolutions. To the best of my knowledge, it does not. Hence, S. 3930. And just because a law is outrageously unConstitutional does not mean, per se that it will be overturned quickly. The Bush Administration excels at stalling in legal matters and, if I understand things correctly, this would not be argued in the Supreme Court first but, in fact, have to go up through a number of courts.

PB

[Warren DeMontague]

48. I think it will be found unconstitutional.

Not that I think it's great that it'll be law until then, but sooner or later the courts will invalidate it.

[Marie26]

57. Actually no

The bill forbids any challenges to the decisions of the military tribunals, but it cannot forbid challenges to the legislation itself. Even this Congress knows that.

That section is part of the chapter entitled "SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS". It deals w/how the military commissions verdicts can be appealed.

Here's the complete Sec. 950(j). It is entitled "finality of proceedings, findings, and sentences", and basically restricts how these verdicts & findings of fact can be reviewed. In context, it's pretty clear that the section refers to review of the commission verdicts themselves, not the actual military commissions law.

Section 950(j)- Finality of proceedings, findings, and sentences

`(a) Finality- The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President.

`(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."

This is bad, because it means the detainees can't petition a civilian court to hear their case, and can't appeal the case to a different court. But it doesn't mean that the law itself can't be reviewed by the courts. Courts have the right to interpret the law, and strike down any provision that violates the Constitution - this is a fundamental part of our judicial system since Marbury v. Madison. Any law that tries to forbid judicial review of Constitutionality is itself unconstitutional & would be struck down. Even if this law tried to stop the courts from ruling on the legislation, it doesn't have the power to do so, any more than the Supreme Court can stop Congress from passing laws. They're separate & equal branches, meaning one does not have the ability to control another.

[onenote]

58. thanks Marie26

Saved me the trouble of posting a similar explanation.