New Rules For Military Tribunals

Reply Wed 28 Oct, 2009 08:12 pm
Buried in the new defense authorization act that Obama just signed into law are new rules for conducting military tribunals:


I'm generally pleased with the new rules (which means ACLU types will be displeased).

Here are some excerpts:

Miranda Warnings:

Page 663

23 (1) IN GENERAL."Absent a court order requir-
24 ing the reading of such statements, no member of
25 the Armed Forces and no official or employee of the

Page 664

1 Department of Defense or a component of the intel-
2 ligence community (other than the Department of
3 Justice) may read to a foreign national who is cap-
4 tured or detained outside the United States as an
5 enemy belligerent and is in the custody or under the
6 effective control of the Department of Defense or
7 otherwise under detention in a Department of De-
8 fense facility the statement required by Miranda v.
9 Arizona (384 U.S. 436 (1966)), or otherwise inform
10 such an individual of any rights that the individual
11 may or may not have to counsel or to remain silent
12 consistent with Miranda v. Arizona (384 U.S. 436
13 (1966)).

Who is Subject to Trial by Military Tribunal:

Page 979

13 ‘‘(1) ALIEN."The term ‘alien’ means an indi-
14 vidual who is not a citizen of the United States.

Page 981

10 The term ‘unprivileged enemy belligerent’ means an
11 individual (other than a privileged belligerent) who"
12 ‘‘(A) has engaged in hostilities against the
13 United States or its coalition partners;
14 ‘‘(B) has purposefully and materially sup-
15 ported hostilities against the United States or
16 its coalition partners; or
17 ‘‘(C) was a part of al Qaeda at the time
18 of the alleged offense under this chapter.

Page 983

20 ‘‘§ 948c. Persons subject to military commissions
21 ‘‘Any alien unprivileged enemy belligerent is subject
22 to trial by military commission as set forth in this chapter.

Geneva Conventions:

Page 983

16 PRIVATE RIGHT OF ACTION."No alien unprivileged
17 enemy belligerent subject to trial by military commission
18 under this chapter may invoke the Geneva Conventions as
19 a basis for a private right of action.


Page 999

6 ‘‘(D) Hearsay evidence not otherwise admissible
7 under the rules of evidence applicable in trial by
8 general courts-martial may be admitted in a trial by
9 military commission only if"
10 ‘‘(i) the proponent of the evidence makes
11 known to the adverse party, sufficiently in ad-
12 vance to provide the adverse party with a fair
13 opportunity to meet the evidence, the pro-
14 ponent’s intention to offer the evidence, and the
15 particulars of the evidence (including informa-
16 tion on the circumstances under which the evi-
17 dence was obtained); and
18 ‘‘(ii) the military judge, after taking into
19 account all of the circumstances surrounding
20 the taking of the statement, including the de-
21 gree to which the statement is corroborated, the
22 indicia of reliability within the statement itself,
23 and whether the will of the declarant was
24 overborne, determines that"

Page 1000

1 ‘‘(I) the statement is offered as evi-
2 dence of a material fact;
3 ‘‘(II) the statement is probative on
4 the point for which it is offered;
5 ‘‘(III) direct testimony from the wit-
6 ness is not available as a practical matter,
7 taking into consideration the physical loca-
8 tion of the witness, the unique cir-
9 cumstances of military and intelligence op-
10 erations during hostilities, and the adverse
11 impacts on military or intelligence oper-
12 ations that would likely result from the
13 production of the witness; and
14 ‘‘(IV) the general purposes of the
15 rules of evidence and the interests of jus-
16 tice will best be served by admission of the
17 statement into evidence.

Convictions by 2/3 vote for sentences 10 years or less (3/4 vote for life sentences or sentences over 10 years):

Page 1017

9 ‘‘§ 949m. Number of votes required
10 ‘‘(a) CONVICTION."No person may be convicted by
11 a military commission under this chapter of any offense,
12 except as provided in section 949i(b) of this title or by
13 concurrence of two-thirds of the members present at the
14 time the vote is taken.
15 ‘‘(b) SENTENCES."(1) Except as provided in para-
16 graphs (2) and (3), sentences shall be determined by a
17 military commission by the concurrence of two-thirds of
18 the members present at the time the vote is taken.

Page 1018

9 ‘‘(3) No person may be sentenced to life imprison-
10 ment, or to confinement for more than 10 years, by a mili-
11 tary commission under this chapter except by the concur-
12 rence of three-fourths of the members present at the time
13 the vote is taken.

Penalty for Killing or Wounding NATO Soldiers:

Page 1067

20 ‘‘(A) OFFENSE."Any person subject to
21 this chapter who intentionally causes serious
22 bodily injury to one or more persons, including
23 privileged belligerents, in violation of the law of
24 war shall be punished, if death results to one or
25 more of the victims, by death or such other

Page 1068

1 punishment as a military commission under this
2 chapter may direct, and, if death does not re-
3 sult to any of the victims, by such punishment,
4 other than death, as a military commission
5 under this chapter may direct.
7 In this paragraph, the term ‘serious bodily in-
8 jury’ means bodily injury which involves"
9 ‘‘(i) a substantial risk of death;
10 ‘‘(ii) extreme physical pain;
11 ‘‘(iii) protracted and obvious dis-
12 figurement; or
13 ‘‘(iv) protracted loss or impairment of
14 the function of a bodily member, organ, or
15 mental faculty.
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Reply Thu 29 Oct, 2009 08:54 pm
Looks like there is one actual change from the previous rules for military tribunals.

No More Coerced Testimony From The Defendant:

Page 993

19 statement of the accused may be admitted in evidence in
20 a military commission under this chapter only if the mili-
21 tary judge finds"
22 ‘‘(1) that the totality of the circumstances ren-
23 ders the statement reliable and possessing sufficient
24 probative value; and
25 ‘‘(2) that"

Page 994

1 ‘‘(A) the statement was made incident to
2 lawful conduct during military operations at the
3 point of capture or during closely related active
4 combat engagement, and the interests of justice
5 would best be served by admission of the state-
6 ment into evidence; or
7 ‘‘(B) the statement was voluntarily given.
9 termining for purposes of subsection (c)(2)(B) whether a
10 statement was voluntarily given, the military judge shall
11 consider the totality of the circumstances, including, as
12 appropriate, the following:
13 ‘‘(1) The details of the taking of the statement,
14 accounting for the circumstances of the conduct of
15 military and intelligence operations during hos-
16 tilities.
17 ‘‘(2) The characteristics of the accused, such as
18 military training, age, and education level.
19 ‘‘(3) The lapse of time, change of place, or
20 change in identity of the questioners between the
21 statement sought to be admitted and any prior ques-
22 tioning of the accused.
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