Military Commissions Act
The Military Commissions Act (Military Commissions Act) is an American federal law , the legal status of so-called " unlawful enemy combatants controls". It was passed by Congress on September 28, 2006 and signed by President George W. Bush on October 17, 2006 , making it into force. Because of its cuts in fundamental rights , the law was already sharply criticized during its creation. The law leaves open the time after which charges must be brought against a prisoner. Therefore, the law allows indefinite detention without charge or trial. The detained person has no right to oppose this treatment in any way.
Emergence
After the Supreme Court of the United States to treat the war on terror caught people by the US government in several precedents (u. A. Hamdan v. Rumsfeld had been) illegal, the Bush administration was in a dilemma. The law was therefore created with the purpose of putting the previously widely practiced practice of unlimited and unlawful detention of foreigners classified as "hostile" on a legal basis. In doing so, the government effectively made law practices that the Supreme Court had previously assessed as fundamentally illegal.
Regulatory area
In essence, the law regulates that persons classified as “unlawful combatants” by the authorities can be convicted by military commissions. These are not the rules of procedure of an ordinary criminal court subject to the rules of procedure of military courts , the Law on the unified military justice (Uniform Code of Military Justice, UCMJ) , is modeled in part. In particular, the defendants have only a limited right to representation by a lawyer , and only extracts from the evidence of the prosecution need be disclosed and examined by the defense. The requirement of direct evidence is also restricted by the unconditional admission of hearsay evidence .
The recovery under torture forced statements, although prohibited - because the United States, however, the "extended interrogation methods" (English Enhanced / harsh / coercive / military interrogation techniques have created) has its own definition, which does not officially regarded as torture, this prohibition effective is questionable . In addition, the prohibition does not apply if the accused himself is suspected of an offense of torture.
Furthermore, it is stipulated that “unlawful combatants” have no right to sue before the ordinary courts of the USA against their treatment or to invoke the Geneva Conventions . You only have one special legal recourse against a decision of the Military Commission:
- With regard to procedural complaints, an appeal for (partial) renegotiation can be filed with the drafting office for military commissions , but this office can also amend or revoke an existing statement “for good reason”.
- The decision of a military commission can be challenged before a military review court for military commissions . This is occupied by the Minister of Defense and has not yet been set up.
- If these possibilities of contestation are exhausted, an appeal similar to a revision is permitted, and only before the Federal Court of Appeal for DC only with regard to legal errors in the procedure or measured against the US Constitution.
Applicable to US citizens
The law aims basically to people who are not citizens of the United States are. The extent to which the law applies to US citizens is controversial among lawyers. The basic applicability results from the definition of "illegal enemy combatant": According to section 948a (1) of the law, an "illegal enemy combatant" is defined (among other things) as follows:
"(I) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents [...]"
"A person who has participated in hostile activities against the USA or its allies or who has intentionally and materially supported them [...]"
The prevailing view is that this formulation is also applicable to US citizens, which Congress has explicitly confirmed. In addition, the term "hostile activities" is not defined in the law itself and can therefore be freely interpreted by the government (so-called general clause or indefinite legal term , colloquially also rubber paragraph ). The law therefore allows the government to detain any person (including US citizens) and to have them sentenced by a military court under the above conditions. The importance for US citizens is limited by the fact that the restriction of the right to a detention examination ( habeas corpus ) in Section 7 of the law is restricted to foreigners (aliens) . Therefore, at any stage, a U.S. citizen would have the right to have his or her detention under the law reviewed by a civil court. The applicability to US citizens is also limited by section 948 (b), according to other opinions, because the jurisdiction of the military courts is there expressly limited to foreigners. The possibility of Americans being imprisoned as "illegal enemy combatants" is not impaired.
This aspect is also relevant insofar as the US government has already detained several US citizens as "unlawful combatants" (e.g. José Padilla and John Walker Lindh ).
The full scope of the law includes - in addition to all foreigners - both the approximately five million illegal immigrants living in the USA and green card holders, since they do not have US citizenship.
practice
In practice, the law has not created the necessary legal certainty and orderly procedures, which is essentially due to overlapping facts and repeated general clauses. Its use causes legal professionals difficulties throughout, so that its enforcement by military personnel appears questionable. In response to the decisions of principle by the Supreme Court, it failed to enable the former applicants to be convicted. In June 2007, the first two cases were brought to trial and were dismissed by the military commissions because of lack of jurisdiction, since the classification as simple "enemy fighters" or "unlawful combatants" or as "fighters in conflict" is constitutive in the MCA regulations and such Cases should therefore be withdrawn from military jurisdiction, see decision Hamdan v. Rumsfeld .
In another case, the IV. Federal Court of Appeal decided that residents of the USA in the sense of all persons duly entered the country, whether citizens or not, were not simply declared by the President as "enemy fighters", "enemies" or " unlawful combatants " or the like With the consequence that they may be taken into military custody for an indefinite period of time and a certain bundle of legislation is applicable to them as a result. As retrospective legislation, it does not see the MCA as being applicable, at least to cases with earlier domestic links. It referred the case back to the Federal District Court to decide whether it should be released from custody, cf. Al-Marri's decision against Wright .
criticism
According to a large number of critics, the law contradicts the American Constitution , among other things, as it invalidates the constitutional right of the individual to protection from unjustified accusation by the state ( writ of habeas corpus ). The adoption of the law was received with outrage in much of the American public and often referred to as a breach of the constitution: It was said in a commentary of the television channel MSNBC , the law fancy the "beginning of the end of America" (Beginning of the end of America) . The New York Times wrote, " And it chips away at the foundations of the judicial system in ways that all Americans should find threatening." ) .
According to widespread opinion, among others by various human rights organizations, the "special interrogation methods" permitted under the Military Commissions Act are to be assessed as torture . Against this background, the law is sharply criticized.
- Quotes
"So vague are the law's words that what constitutes" terrorist activity "and whether it can be used against U. S. citizens remain with the monarchical power of George W. Bush to decide."
"The wording of the law is so vague that the definition of" terrorist activity "and whether it can be used against US citizens remains within the royal authority of George W. Bush"
"We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. "
“It is to be expected that Bush will continue to abuse September 11th to deprive us of even more freedoms. Our constitutional right to dissent is seriously jeopardized. "
"We have lived as if in a trance. We have lived as people in fear. And now - our rights and our freedoms in peril - we slowly awaken to learn that we have been afraid of the wrong thing. (...) For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from. "
“We lived like in a trance. We lived in fear as a people. And now - with our rights and freedoms in danger - we are slowly awakening to realize that we feared the wrong cause. (...) Because, on this first full day on which the Military Commissions Act is in force, we are now facing what our ancestors faced in other times with exaggerated fearmongering: a government that is more dangerous for our freedom than the enemy before which it pretends to protect us. "
See also
- USA PATRIOT Act
- National Defense Authorization Act for Fiscal Year 2012 - highly controversial law with a similar focus from 2012
Web links
References and comments
- ↑ Jenny Welke: Guantánamo Bay - a legal vacuum. (PDF; 184 kB) In: MenschenRechtsMagazin , issue 3/2007, p. 318
- ↑ Convening Authority
- ^ Court of Military Commission Review
- ^ United States Court of Appeals for the District of Columbia Circuit
- ↑ cf. § 950g
- ^ A b Marjorie Cohn: Military Commissions Act: Unintended Consequences? ( Memento of the original from October 23, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. legalnews.tv, September 30, 2006
- ^ Jack M. Balkin: Does the Military Commissions Act apply to citizens? Personal blog page of law professor Jack M. Balkin, September 29, 2006
- ^ A b Robert A. Levy: Does the Military Commission Act Apply to US Citizens? Cato Institute, October 2, 2006
- ↑ cf. Washington Post of June 5, 2007 , Süddeutsche Zeitung of June 5, 2007
- ↑ United States Court of Appeals for the Fourth Circuit
- ↑ New York Times, June 12, 2007 ; Süddeutsche Zeitung of June 14, 2007 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ^ Decision of June 11, 2007
- ^ A b Keith Olbermann : Beginning of the end of America. MSNBC, October 19, 2006
- ^ A Dangerous New Order. In: New York Times , October 19, 2006
- ↑ Reymer Klüver: USA relax ban on torture . ( Memento from November 11, 2007 in the Internet Archive ) In: Süddeutsche Zeitung , September 29, 2006
- ^ Congress rubber stamps torture and other abuses . Amnesty International press release
- ↑ Ralph Nader: The End of Habeas Corpus and the Belligerent Despot-in-Chief. ( Memento of the original from January 13, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. counterpunch.com, October 23, 2006
