Talk:Military Commissions Act of 2006/Archive 3

Archive 1

Archive 2

Archive 3

TDC's latest edits

TDC has made a trio of edits that, overall, weaken the article. Quotations are from TDC's edit summaries.

• "all of this is covered below, and it the accuracyof these statements is in doubt" - It's covered below because this is the introductory section and it's providing a preview of the major points in the article. As for the accuracy, the phrase "eliminates Habeas Corpus" is an overstatement, so I'm rewording it to "curbs the right of habeas corpus". I'm not aware of any serious challenge to the accuracy of that assertion, or to the statement about indefinite detention. Clarity would be improved, however, if the factual and opinion statements were separated. Also, I think that characterizing the critics as "bipartisan", while true, is more detail than is needed in the introductory section.
• "Impeding criminal prosecutions - changed title, Impending implies that there will be trials at some future date that the law will cover" - The word is impeding, not impending. This is the Criticisms section and critics do indeed contend that the Act impedes criminal prosecution of certain war criminals.
• TDC's third edit (no edit summary provided to explain extensive changes) - The substantive changes made by this edit were for the worse. The sentence beginning "The other relevant provision of the MCA...." should not have been eliminated because marking the transition to a new subtopic is helpful to the reader. The introduction of the reference to provision of counsel (not council) is inappropriate because it's not part of the criticism being summarized here.

I'm restoring the prior language but with the introductory section modified as per above. JamesMLane t c 00:44, 19 October 2007 (UTC)

The "Impeding criminal prosecutions" is using a title that is inherently POV, because it states that the law will impede criminal prosecution. All other subsections in the criticism section are titled in an NPOV manner (Alleged unconstitutionality, The Act may apply to U.S. citizens, minus th one that is going to be removed), and this one should be as well.

To say the act “limited the definition of what constitutes a war crime under” is POV and should be cited as such, it is more accurate to say that it amended it, because it could be argued, and has been in court that the amendment clarified what is and is not a war crime.

To say that "Accusations of misconduct in the "detention and interrogation of aliens" would not subject a defendant to criminal liability under certain conditions, one of which was that the President had authorized the acts," Is also POV, and quite simply, factually wrong, as I have illustrated at length above.

The full portion of the subsection is as follows, with the out of context quotation highlighted.

Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

And then there is the intro: The bill curbs the right of habeas corpus and has been used to detain "enemy combatants" indefinitely in a military prison without access to a lawyer. Critics contend that the law is unconstitutional.. First of all, who has the bill been used on to detain them indefinitely in a military prison? There are no examples given in the article. Does someone have a crystal ball that see 90 years into the future, to verify the indefinite nature of this detention? Also, who has been both charged under this law and simultaneously denied a lawyer, once again, no examples in the body of the article.

I too will restore the language, minus a few modifications. Torturous Devastating Cudgel 19:15, 19 October 2007 (UTC)

The Combatant Status Review Tribunals are flawed

I am proposing removing the section because Debenaux is the legal council for several of the terrorists, and as such, severe qualifiers should be added to any comments he may have on this topic, and as such, devoting an entire section to his opinions on this seems to violate POV. Other editors have already commented that the section needs trimming, so this seems like a good place to start. Torturous Devastating Cudgel 20:44, 17 October 2007 (UTC)

The section you criticize also cites Human Rights First, the Washington Post, and the Village Voice. Even as to Denbeaux, you are mistaken. According to our article on the "Denbeaux Study", the Denbeaux who has represented two of the terrorists detainees is Joshua Denbeaux. Our MCA article quotes his father, Mark Denbeaux. JamesMLane t c 23:28, 18 October 2007 (UTC)

The Denbeaux study was written by both Denbeauxs, and both of them are members of the "GTMO bar association". I don't think you can say they're independent.

The items from the Washington Post and Village Voice were derivatives of the Denbeaux study. It adds texture but it doesn't stand up on its own. BTW: It's a shame that the bounty hunter meme is in this article without explanation. Al Qaeda ought to be passing out medals to the Denbeauxs for that.

The analysis from "Human Rights" First is disingenuous, but I don't oppose keeping it in.

-- Randy2063 00:01, 19 October 2007 (UTC)

Some observations

1. Whether those involved represent detainees is irrelevant to the question of the accuracy of their comments
2. If those criticising the CSRT/MCA are "partisan," "biased," or in any other way "unreliable" does that mean that supporters of the legislation, i.e. the WH c.s., are "unbiased" and "trustworthy" in their opinions?

SincerelyNomen Nescio^{Gnothi seauton} 11:35, 19 October 2007 (UTC)

Nomen, It's very relevant when those comments reflect opinions rather than facts. Mark Denbeaux's opinions on the CSRTs being "show trials" are cagey at best, and not facts in any case. His "study" on "92% of captives" being "not al Qaeda fighters" is extremely deceptive. If it remains in this article it should only be to provide an example the sleazy lawyering behind the defense.

-- Randy2063 20:40, 19 October 2007 (UTC)

Even as to Denbeaux, you are mistaken. According to our article on the "Denbeaux Study", the Denbeaux who has represented two of the terrorists detainees is Joshua Denbeaux. Our MCA article quotes his father, Mark Denbeaux.

All the more reason to never use Wikipedia as a source

“The Guantánamo Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee and the House Appropriations Committee and introduced into the congressional Record. Professor Denbeaux currently represents two detainees in Guantánamo Bay Detention Camp. In addition to his role in the Guantánamo litigation Professor Denbeaux has written books and articles on a variety of subjects including: Class Actions, Forensic Evidence, The First Amendment, International Law, Professional Responsibility and Restitution.”[1].

Torturous Devastating Cudgel 19:18, 19 October 2007 (UTC)

You miss my point:

1. The fact somebody is a lawyer, or bald, or Republican, or female, et cetera is irrelevant to the statement that the CSRT's are inadequate.
2. The lack of critique regarding those supporting these violations of due legal process is a prime example of inconsistency towards applying policy.

Nomen Nescio^{Gnothi seauton} 15:00, 22 October 2007 (UTC)

Structure and Parallel Formating

The formating of quotes from the act, used throughout the article, is inconsistent and at some points confusing. When you add a quote, please ensure that it matches the formating used throughout. Thanks. I will try to get the formating corrected over the next several days. --Jophus00 (talk) 02:31, 31 March 2008 (UTC)

Alleged unconstitutionality

This entire section requires serious work to comply with WP:NPOV. There is no balance, unless these constitutional claims find everyone in agreement. I don't have time to do the necessary work to ensure NPOV compliance, does anyone? If this section is to stay, serious work needs to be done. Otherwise, the entire section needs to be deleted until someone has time to bring it into compliance. Raggz (talk) 12:30, 27 January 2008 (UTC)

A number of legal scholars and Congressional members—including Senate Judiciary Committee Ranking Member Arlen Specter (R–PA)—have said that the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion."[21]

Another criticism is that the Act violates the Constitution's prohibition against ex post facto laws. Pro human rights group Human Rights First stated that "In violation of this fundamental tenet of the rule of law, defendants could be convicted for actions that were not illegal when they were taken." [22] Joanne Mariner, an attorney who serves as the Terrorism and Counterterrorism Program Director at Human Rights Watch, described the issue this way:

The MCA states that it does not create any new crimes, but simply codifies offenses "that have traditionally been triable by military commissions." This provision is meant to convince the courts that there are no ex post facto problems with the offenses that the bill lists. In Hamdan v. Rumsfeld, however, a plurality of the Supreme Court (four justices) found that conspiracy—one of the offenses enumerated in the MCA—was not a crime triable by military commission. The bill's statement that conspiracy is a traditional war crime, does not, by legislative fiat, make it so.[23]

Law professor John P. Cerone, the co-chair of the American Society of International Law Human Rights Interest Group, adds that the Act "risks running afoul of the principle against ex post facto criminalization, as recognized in international law [(article 15 of the International Covenant on Civil and Political Rights) as] well as US constitutional law."[24]

The content is noteworthy and well sourced to experts of differing political views (e.g. a leading Republican Senator, several members of the U.S. Supreme Court). Don't delete the section just because you are unwilling or unable to find an authority saying that the habeas portion is constitutional; after all, the same criticism could be made of a claim that the earth is round. rewinn (talk) 03:40, 16 March 2008 (UTC)

I agree with rewinn. The passage comes under the heading of stating facts about opinions, as per Wikipedia:Neutral point of view#A simple formulation. If the section is thought to be unbalanced, then the solution would be to add similarly well-sourced facts about contrary opinions. JamesMLane t c 06:12, 17 March 2008 (UTC)

Justices Rule Terror Suspects Can Appeal in Civilian Courts[[2]] 76.8.72.250 (talk) 18:59, 12 June 2008 (UTC)

Related Articles section

Is a link to the "Nacht_und_Nebel" article necessary, relevant or fair? Comparing the detention and torture of political dissidents in the Third Reich to a military commissions bill seems a bit much to me. I would propose deleting this link. —Preceding unsigned comment added by 128.135.24.164 (talk) 10:01, 13 June 2008 (UTC)

Boumediene v. Bush

This article needs a through review in the light of Boumediene v. Bush. Many of the sections under Criticism are out of date --Philip Baird Shearer (talk) 17:17, 28 June 2008 (UTC)

Yes, but please don't remove old criticisms. They should remain to show what people were asking for.

-- Randy2063 (talk) 18:36, 28 June 2008 (UTC)

There is little point in keeping old speculation such as the very first paragraph:

A number of legal scholars and Congressional members—including Senate Judiciary Committee Ranking Member Arlen Specter (R–PA)—have said that the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion."

As the Supreme court has now ruled on this so it is not necessary. There is a lot more in a similar vain that can now go. --Philip Baird Shearer (talk) 18:13, 29 June 2008 (UTC)

It depends on whether we're talking about speculation, or criticisms and demands.

I don't doubt that we'll leave in victories achieved by those who sided with the detainees. Their defeats must be kept in as well.

Note that we've seen a shift over the years from claiming to care about the Geneva Conventions to now focusing only on civil rights as though the GCs did not apply (which is kind of funny, after all). That shouldn't be thrown in the trash.

-- Randy2063 (talk) 18:38, 29 June 2008 (UTC)

Criticism section

The criticism section contained MAJOR errors. Most notable was this section:

As such, habeas corpus might be denied to US citizens. Jennifer Van Bergen, a journalist with a law degree, responds to the comment that habeas corpus has never been afforded to foreign combatants with the suggestion that, using the current sweeping definition of war on terror and unlawful combatant, it is impossible to know where the battlefield is and who combatants are. Also, she notes that most of the detentions are already unlawful.

Each of those references made it clear that the definition of enemy combatant applied to citizens AND that the habeas provision applied only to alien (non-citizen) enemy combatants. The cites really applied to the broad discussion and not that sentence. And in fact, the sentence itself was not only unsubstantiated, but completely wrong. The act itself reads:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

I have made a best effort at correcting these defects in my edit made just minutes ago. I feel the whole section needs a rewrite. But this should help at least for now.

Doug Bateman (talk) 15:17, 4 January 2011 (UTC)

Where is the balance here? When have enemy combatants/POWs, in the history of warfare ever gotten habeas corpus or any other constitutional rights? And how can I say such without a cite, i.e., how do you cite a negative, that no such case law exists? Non-citizens not in the US have never, ever received any constitutional protections. —Preceding unsigned comment added by 71.103.42.113 (talk) 04:37, 21 January 2008 (UTC)

The criticism section is completely biased. It routinely presents assertions and allegations as fact. Also, this section here is completely ridiculous:

http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006#The_Act_may_apply_to_U.S._citizens

The Act does not apply to US citizens. The article admits as much:

http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006#Applicability

The lack of the word "alien" in one part of the Act does not magically make the word "alien" disappear from Section 948a. It is a weak argument, but you give it more length and as such more credibility than what the Act itself actually says.

"Human Rights First has commented on the numerous flaws in the Military Commissions Act."

That is an incredibly biased sentence. It accepts that there are "numerous flaws" as fact when Human Rights First is an obviously biased source with a vested interest in the controversy.

The entire criticism section is one huge piece of bias. Mark Denbeaux is a biased source; a simple internet search of the man's name reveals as such. He has also been a frequent critic of handwriting analysis despite his almost total lack of knowledge and expertise in the field. His "expert opinions" on the subject have been dismissed by the Courts at least once when he was retained as an expert for an appeal. His studies have value and should be linked, but his prejudicial quotes - the trials are "shams" - should not.

Where the hell are the Wikipedia standards? Down the toilet. Nat Hentoff opined in the Village Voice - who gives a damn what Nat Hentoff opined? How is his opinion relevant?

"Nat Hentoff opined in the Village Voice that

conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush and Hamdan v. Rumsfeld makes US government officials culpable for war crimes."

How is that possibly relevant? How is it neutral? How are the opinions in the "support" section relevant? Where is the legal analysis? I'm sure there's plenty of it out there to find, instead when I come to Wikipedia I'm met with the words of obviously biased pundits. Funny, though, how the "Support" section is VERY carefully worded in order to make it VERY clear that what is being said is the opinion of those saying it, while the "Criticism" is much, MUCH more sloppy.

It's also very telling how in the "Scope" section you start quoting from Section 948b, and don't include Section 948a. A little harder to push your meme if you put inconvenient facts right at the top of the page, I guess.

Pages like this are why Wikipedia is considered about as reliable as the supermarket tabloids by any organization with standards. —Preceding unsigned comment added by 24.131.26.194 (talk) 14:36, 3 September 2007 (UTC)

24.131.26.194 is 100% correct, which should be obvious to anyone who has the slightest interest in objectivity or in making Wikipedia actually resemble an encyclopedia rather than a forum for well-sourced propaganda. There is nothing worth salvaging in the "The Act May Apply To US Citizens" section. The whole thing should be deleted. Even the title is verifiably factually false. According to the act, under 948c and 948d.a, the jurisdiction of the military commission is limited to "alien unlawful enemy combatants"! Besides being outrageous, the section is downright embarrassing, e.g. "Jennifer Van Bergen, a journalist with a law degree, says..." Erikmartin (talk) 17:27, 26 November 2007 (UTC)

References

Relevant Supreme Court cases

Under the "Relevant Supreme Court cases" section on the right-hand information box of the article page it says "None". This is obviously incorrect as the case 'Boumediene v. Bush' is very relevant and even discussed in the "Court Challenge" section of the article. Since I am unaware of the standard for referencing a case in such a section, would someone please add it.

If no one responds to this comment or adds it within two days, I will add it myself. —Preceding unsigned comment added by 68.81.190.74 (talk) 00:10, 29 January 2011 (UTC)