Talk:Military Commissions Act of 2006/Archive 1

message: I usually always like blockquotes as opposed to direct quoting within paraphrased text, but if you want to go with it that's fine by me in this instance.  Yours, Smeelgova 23:32, 29 September 2006 (UTC)
replies: text: Per Wikipedia:Manual of Style#Long quotations, the blockquoting style is used for long quotations.  What's "long" isn't precisely defined.  One standard I remember seeing somewhere (possibly in the Bluebook, though I'm not sure) is to indent a quotation if it has two or more sentences or 50 or more words.  I've sometimes indented things that fell short of those guidelines.  Here, though, the specific passages involved are very short and are fine as inline quotations. JamesMLane t c 08:05, 30 September 2006 (UTC)
replies: text: Sure thing, thanks for the iteration, didn't know about all that policy stuff. Yours, Smeelgova 21:23, 30 September 2006 (UTC)
thread_title: Blockquoting

message: Sorry to quote a legal blog but there aren't going to be law review articles on the bill yet. I suppose if op-eds in Jurist are ok, then references to Marty Lederman's analysis are good enough.  The references to the bill sections can all be cleaned up when it is passed (we can reference 10 USC 47A, section 948 etc). ArielGlenn 17:09, 16 October 2006 (UTC)
replies: text: Are you saying that this was not vandalism? Torturous Devastating Cudgel 21:32, 18 October 2006 (UTC)
thread_title: Legal refs

message: Secs.948i-948m define the military commissions that prosecute (when they feel like it) people designated "unlawful enemy combatants". They do not define the "competent tribunals" that make that designation. Ribonucleic 15:37, 18 October 2006 (UTC)
replies: text: Umm, yeah it is: A "competent tribunal" is defined in the US Army field Manual. section 27-10, for the purpose of determining whether a person is or is not entitled to prisoner-of-war status and consists of a board of not less than three officers. Torturous Devastating Cudgel 19:09, 18 October 2006 (UTC)
replies: text:  The Army Field Manual, section 27-10, is not Sections 948i-m of the Act - which is what the text I removed from the article was claiming defined the tribunals. Ribonucleic 20:27, 18 October 2006 (UTC)
thread_title: "Competent tribunals" not defined

message: From WP:NOR
“Articles may not contain any unpublished arguments, ideas, data, or theories; or any unpublished analysis or synthesis of published arguments, ideas, data, or theories that serves to advance a position.”
Namely, the inclusion of a section entitled “major provisions” is OR. Why are these provisions major? Who decided that they are major? Since there is no section in the text of the law, why are these specificly cited as “major provisions”. Sources need to be added to these, preferably by some mainstream legal authority on why these cited provision are an more notable than the hundreds of other provision s in the law. Torturous Devastating Cudgel 19:47, 18 October 2006 (UTC)
replies: text:  Major or minor, still does not matter. Why is one section 949c.(b)(3)(D) in the article, but not 949c.(b)(3)(B)? Are we trying to draw the reader to a conclusion, and if not, why are we not replicating the Act in its entirety? I am removing the whole section, until we have some noteworthy legal commentary on the specific sections, otherwise its inclusion is POV and prejudicial. Torturous Devastating Cudgel 20:09, 18 October 2006 (UTC)
replies: text: Those are the facts of the law, neutrally stated, each and every one documented. Don't blame me if they look bad. If NPOV is your real concern here, I respectfully suggest that you add to balance out what is there - rather than make a large, unilateral deletion. Ribonucleic 20:20, 18 October 2006 (UTC)
replies: text:  Neutrally sated, but not neutrally presented. And how do I balance it? Do I simple cut and past the whole act? Since you have deemed to necessary to unilaterally decide what has gone in, regardless of notability, it’s a case of NPOV and OR. Torturous Devastating Cudgel 20:30, 18 October 2006 (UTC)
replies: text: You could address your OR concerns by finding and quoting media articles commenting on the "novel" aspects of the Act - i.e. hearsay evidence, torture evidence, secret evidence, etc. That probably wouldn't take long. If your passion for eradicating OR isn't quite that motivating, you could leave the article as it is.  Or, to get away from all this unilateralism, we could wait to see what other comments on the dispute appear here. But I spent a lot of time documenting all those neutrally stated facts that you found so prejudicially presented. So until there's some consensus, I'm going to strive to keep them in. Ribonucleic 20:57, 18 October 2006 (UTC)
replies: text:  Well, feel free to do so, but lets just leave the tag be for a while. Torturous Devastating Cudgel 21:31, 18 October 2006 (UTC)
thread_title: Original Research in Article

message: The definition does not say you're the Bad Guy "if a tribunal finds that you materially supported..." It says you're the Bad Guy if you: 1) materially supported, or 2) a tribunal says you are. It says nothing about what, if anything, the tribunal would have to decide before saying so. Ribonucleic 20:01, 18 October 2006 (UTC)
replies: text: What do you know, it looks like it does! Torturous Devastating Cudgel 20:36, 18 October 2006 (UTC)
replies: text:   Section 10 of the Act simply amends the wording of the Detainee Act. It does not say it is binding (or even a handy reference) for a tribunal finding of Bad Guy status under section ii of the definition. Feel free to try again. Ribonucleic 20:39, 18 October 2006 (UTC)
replies: text:  Read the Detainee Act, It has been amended, and I provided a link. Torturous Devastating Cudgel 20:51, 18 October 2006 (UTC)
replies: text:  I checked your link, but I couldn't make sense of it. [Is it any different than the text at http://www.pegc.us/detainee_act_2005.html ?] In any case, the point of your earlier gloating - as I understood it -  was that the MCA does in fact define how you can get disappeared under part ii. It does not do so by referring to any such definition in the Detainee Act - at least not in Section 10 as you stated in the article before I removed it as unsupported. And the references to the Detainee Act in section 8, as best I can tell, only appear to be finessing the torture specifics. They shed no light on how the tribunal decides you ought to be tortured in the first place. Ribonucleic 21:08, 18 October 2006 (UTC)
replies: text:  “How you see it” is not relevant to the content of the article. Only sourced information please. I added the briefing from Wolfowitz on this issue, instructing the set up of the Combatant Status Review Tribunal. . - Torturous Devastating Cudgel 21:13, 18 October 2006 (UTC)
thread_title: Who's the enemy combatant?

message: Let us all celebrate in joy the marvelous step the greatest nation of the entire planet - nay, 'entire galaxy!' - took in the direction of freedom and democracy!201.19.185.68 00:25, 19 October 2006 (UTC)
replies: text: Tell Osama hi when you see him troll boy. Torturous Devastating Cudgel 01:32, 19 October 2006 (UTC)
replies: text:  TDC, just a reminder that the Discussion area is for debating the editing of the article - not for feeding the trolls, especially in their own moronic register. However, this comment of yours did remove any last lingering doubt I had about the sincerity of your previous "OR" deletions - so I can't complain. Ribonucleic 15:44, 19 October 2006 (UTC)
replies: text:  If I want to feed some Brazilian troll, that’s my prerogative. And while you may doubt the sincerity of my NOR complaint, I see that you have not doubted the merit of it. Torturous Devastating Cudgel 16:52, 19 October 2006 (UTC)
replies: text:  Yes, violating the stated guidelines for use of the Talk page is indeed your prerogative - as I suppose it was for the troll. Congratulations on having lowered yourself to his level. And I do doubt the merit of your OR tag - but I consider it a reasonable expression of your disagreement with the section, whereas I found your previous wholesale deletion unreasonable. Ribonucleic 17:51, 19 October 2006 (UTC)
thread_title:  Hip Hip Hooray!

message: For my fellow editors' discussion, see the following material in the text:
::Based on his findings, the judge may introduce hearsay evidence [10 U.S.C. sec. 949a(b)(2)(E)(i)], evidence obtained without a search warrant [10 U.S.C. sec. 949a(b)(2)(B)], evidence obtained when the degree of coercion is disputed [10 U.S.C. sec. 948r(d)], or classified evidence not made available to the defense [10 U.S.C. sec. 949d(f)(2)(B)]. 
I would just point out that perhaps except for the last item, classified evidence not made available to the defense, the listed items would also be admissible in a "regular" Federal court in criminal or civil proceedings, especially hearsay and evidence obtained without a search warrant. The article as currently written might be a bit misleading by not pointing that out. However, for now I'm just leaving this here for your discussion. Yours, Famspear 22:45, 18 October 2006 (UTC)
replies: text: Just on heresay, what sec. 949a(b)(2)(E)(i) actually says is "Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission..."  I haven't looked into the provisions on improperly obtained evidence yet.  Daniel 10:34, 19 October 2006 (UTC)
thread_title: Evidence admissible

message: The vote tally seems wordy, a link is provided, I am going to remove it. Any objections? Torturous Devastating Cudgel 15:03, 20 October 2006 (UTC)
replies: text: Alternatively, you could move it down to just above the "see also" section. Then it wouldn't break up the text so much. — goethean ॐ 15:10, 20 October 2006 (UTC)
replies: text:  Good nuff. Torturous Devastating Cudgel 15:25, 20 October 2006 (UTC)
thread_title: Vote Tall

message: Dear fellow editors: The article contains the following sentence with a footnote reference:
::Because Lynne Stewart was convicted of material support for a terrorist organization, it is possible that she might be classified as an "unlawful enemy combatant."
The footnote actually goes to the material immediately prior to that sentence, so I changed the position of the footnote. Nothing in the cited article on Lynne Stewart that I could see even mentioned "unlawful enemy combatants" as that term is used in the Military Commissions Act of 2006. The statement ("Because Lynne Stewart was convicted . . ." etc.) may be correct or incorrect -- but I would say that, either way, the footnote might not go at the end of that particular sentence. Yours, Famspear 21:20, 25 October 2006 (UTC)
thread_title: Moving a footnote up a bit

message: It appears that a brand spanking new anonymous editor has appeared just in time for User:TDC to "win" an edit war over the inclusion of the word 'alien' in the last sentence of the intro -- how lucky! However, including the word 'alien' doesn't make any sense.  The CATO institute scholar found that US citizens can be detained, but not tried, under the Act. Despite this clear finding, User:TDC continues to repeatedly insert the term 'alien' before the phrase 'unlawful combatant'. The intro to this article claims that:
 the Act provides for controversial practices relating to the US government's
 detention and treatment of alien unlawful combatants.
That is not the whole truth. The Act also provides for controversial practices relating the the US gov't's detention of unlawful combatants who are not aliens. To regain accuracy in this article, his edit must be reverted. — goethean ॐ 23:30, 2 November 2006 (UTC)
replies: text: If you are accusing me of using a sockpuppet, then I would welcome you file a check user, as such use would most surely land me in a heap of trouble. And as for your second claim, please cite a source, as I have cited many and review the above discussion with Letxa2000. Thanks and have a great day! Torturous Devastating Cudgel 15:33, 3 November 2006 (UTC)
replies: text: I'll repeat myself.  The CATO institute scholar found that US citizens can be detained, but not tried, under the Act. — goethean ॐ 15:44, 3 November 2006 (UTC)
replies: text:  The act does not pertain to detainment, but to trials, and as the CATO guy is in the minority (so far he is the only one cited who thinks anything in the act applies to US citizens), it does not go to establish article consensus. Torturous Devastating Cudgel 16:31, 3 November 2006 (UTC)

text: Please see Wikipedia's no personal attacks policy. Comment on content, not on contributors; personal attacks damage the community and deter users. Note that continued personal attacks may lead to blocks for disruption. Please stay cool and keep this in mind while editing. Thank you.  Ribonucleic 16:18, 3 November 2006 (UTC)
replies: text: TDC, why do you insist here (on November 3rd) that "the CATO guy... is the only one cited who thinks anything in the act applies to US citizens," when it was already pointed out to you on October 19th above that Congressman David Wu (D-OR) states explicitly that there are provisions in this act that apply to U.S. citizens.  In trying to assess the source of your inconsistency, I can only conclude that it stems from a disingenuous attempt to conform this article to your POV.  Please do not insist that this Act is uncontroversial, merely because you favor one interpretation of it.  And I agree with Ribonucleic above that your constant use of personal attacks degrade this forum, so I would urge you to avoid them in the future, for the betterment of the wikipedia community, if not for your own sense of integrity. Dwinetsk 00:22, 11 November 2006 (UTC)
thread_title:  "alien" unlawful combatants 

message: I assert that 70.208.196.254 and 70.223.58.113 are sockpuppets used by TDC to evade enforcement of the three-revert rule. 1) This is the only article either ISP has edited. 2) 70.208.22.145 summarized its 15:55, November 2, 2006 edit as "I think TDC is right here". 3) 70.223.58.113 summarized its 11:06, November 4, 2006 edit with "umm, no" - as TDC summarized his 12:05, November 1, 2006 edit of the Al Haig article with "umm, no they havent". 4) Their edits continually reintroduce, without Talk page discussion, changes originally made by TDC - specifically to the heading and content of the "Criticism" section. 5) These changes, without exception, serve the purpose of blunting criticism of the article's subject - which has been the effect of all TDC's edits to the article. 6) TDC's User Talk page contains literally dozens of warnings and suspensions for 3RR violations - including one just over 2 months ago that was characterized by the admin as a "vast violation of your revert parole". 7) In an exchange with another member, TDC admits subverting enforcement: "Aren't you on revert parole?" Gamaliel 02:43, 6 June 2006 (UTC)
thread_title: March of the sockpuppets

message: Since it seems this legislation passed both the Representative and Senate chambers by pretty large numbers, it would seem the support section should carry more weight than the criticism section.  Yet this is not the case.  Comment? --Tbeatty 06:42, 5 November 2006 (UTC)
thread_title: Undue weight of the criticism section?

message: Claiming that "The Act changes pre-existing law to explicitly disallow the invocation of the Geneva Conventions" ranks somewhere between "lawerly half-truth" and outright falsehood.
The Act allows (as per the Geneva Convention) that the detainnees in question can seek "can seek release from unlawful imprisonment" (habeus corpus) from the military tribunal system as outlined in the Geneva Convention.
And affirms the right of the detainees to appeal the tribunals' decisons to the DC court or appeals and the Suprmem court 
I feel that the article would be less biased if it mentioned those facts and included some sort of reference to the Geneva Convention.
Specifically the Geneva Conventions allow the US (or any other signatory) 
- to distinguish bewteen POWs and enemy combatants
- to hold enemy combatants incommunicado unti theend of hostilities
- to try enemy combatants in front of an military tibunal 
- and allows those tribunals to enforce peanl sentences inlcuding imprisonment beyond the end of hostilities, forced labor or even the death penalty.
Presenting the Military Commissions Act of 2006 in this context makes it seem more likley that the act is wihtin the realm of "International Law."  Ignoring these facts while discussing the Act
To Wit:
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) Articles 44 and 45
http://www.unhchr.ch/html/menu3/b/93.htm
SECTION.-COMBATANT AND PRISONER-OF-WAR STATUS
Article 44.-Combatants and prisoners of war
3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an
armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
(a) During each military engagement, and
(b) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).
*****4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war,***** but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol
(emphasis mine)
and
Article 45.-Protection of persons who have taken part in hostilities
1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, [B]if he claims the status of prisoner of war, or if he appears to be entitled to such status,[/B] or if the Party on which he depends claims such status on his behalf by notification to the detaining
Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, *****he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.*****
2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, *****he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal *****and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. 
and
http://www.unhchr.ch/html/menu3/b/91.htm
Gen Con 3 Article 4
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
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, fulfil 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. . . .
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.”
and 
Article 5
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is *****detained as a spy or saboteur,***** or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. 
Article 107
. . . . 
Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of war in the first instance is a *****death sentence,***** the Detaining Power shall as soon as possible address to the Protecting Power a detailed communication containing: . . . 
Bob Hyneman 01:10, 14 November 2006 (UTC)
thread_title: Context

message: TDC deleted some of the following text from the "Criticism" section. I am placing it here so that it can be determined what should be returned to the article. 
Yale University professor of law Bruce Ackerman agrees that the Act:
"authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights".
A number of legal scholars and Congressional members - including Senate Judiciary Committee Chairman 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.""Court Told It Lacks Power in Detainee Cases", Washington Post The law has also been criticized for allegedly giving a retroactive, nine-year immunity to U.S. officials who authorized, ordered, or committed potential acts of abuse on detainees.MILITARY COMMISSIONS ACT SHAMES THE CONSTITUTION AND WEAKENS AMERICA Stephen Rhode, Tikkun
Amnesty International said that the Act "contravenes human rights principles.""US Congress gives green light to human rights violations in the 'war on terror'" Amnesty International, September 29, 2006  They point out that:
"Among other things, the Military Commissions Act will:
* Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.
* Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
* Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.
* Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
* Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.
* Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.
* Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror", which have been widely criticized, including by the UN Committee against Torture and the Human Rights Committee. Amnesty International is concerned that the administration appears on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.
* Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President. President Bush has led a pattern of official public commentary on the presumed guilt of the detainees, and has overseen a system that has systematically denied the rights of detainees.
* Limit the right of charged detainees to be represented by counsel of their choosing.
* Fail to provide any guarantee that trials will be conducted within a reasonable time.
* Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
* Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. Amnesty International believes that the USA has routinely failed to respect the human dignity of detainees in the "war on terror".
* Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions". Under President Bush, the USA has shown a selective disregard for the Geneva Conventions and the absolute prohibition of torture or other ill-treatment.
* Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date."Military Commissions Act of 2006 - Turning bad policy into bad law", Amnesty International, September 29, 2006
— goethean ॐ 16:40, 14 November 2006 (UTC)
thread_title:  Text deleted from 'criticism'