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:
20 SEC. 1040. NO MIRANDA WARNINGS FOR AL QAEDA TER-
22 (a) NO MIRANDA WARNINGS."
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
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
Who is Subject to Trial by Military Tribunal:
13 ‘‘(1) ALIEN."The term ‘alien’ means an indi-
14 vidual who is not a citizen of the United States.
9 ‘‘(7) UNPRIVILEGED ENEMY BELLIGERENT."
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.
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.
15 ‘‘(e) GENEVA CONVENTIONS NOT ESTABLISHING
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.
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"
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):
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.
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:
18 ‘‘(13) INTENTIONALLY CAUSING SERIOUS BOD
19 ILY INJURY."
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
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.
6 ‘‘(B) SERIOUS BODILY INJURY DEFINED."
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.