the terrorist tribunal bill

The House has passed H.R. 6166, the Military Commissions Act of 2006, which they intend to establish tribunals to try unlawful enemy combatants. The bill defines "unlawful enemy combatant" in § 948a:

(1) UNLAWFUL ENEMY COMBATANT-

(A) The term `unlawful enemy combatant' means--

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

The bill defines "Lawful Enemy Combatant" this way:

(2) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means a person who is--

(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

As far as I can tell, § 948a(A)(1)(i) would include the Minutemen of the American Revolution. I guess that's some sort of vindication for the British forces that accused the U.S. of not honoring the rules of war in 1776.

Note the odd split in who gets to decide who's an enemy combatant. § 948a(A)(1)(i) gives a statutory definition, so that'd probably fall to the courts to interpret and figure out the dividing line. However, § 948a)(A)(1)(ii) lets an executive-branch commission opt-in anyone else it wants to, even if they're not involved in hostilities and, apparently, even if they're U.S. citizens.

Once you're in the system, you enter court-martial land. Furthermore, non-citizens in the system can't use the Geneva Conventions:

§ 948b(g): Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

I don't have the several hours it'd take to go through the bill in detail, but it contains several other provisions that are worth thinking very seriously about before we subject ourselves to them. For example, you can use hearsay evidence ("I heard John say Jane said this..."):

(E)(i) 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 if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.

(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.

Finally, the bill treats classified evidence like this in § 949j:

(c) Protection of Classified Information-

(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--

(A) the deletion of specified items of classified information from documents to be made available to the accused;

(B) the substitution of a portion or summary of the information for such classified documents; or

(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

(d) Exculpatory Evidence-

(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).

(2) In this subsection, the term `evidence known to trial counsel', in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.

A couple quick questions come to mind with this provision. First, what sort of incentive does it create for trial counsel to learn about exculpatory evidence. Second, what provisions exist to review the decision to disclose, or not to disclose, that evidence.