The House Armed Services Committee began conducting hearings today regarding Military Commissions and the future of GTMO. Ike Skelton, identified seven possible defects in the MCA, stating:
“Last year, when Congress passed this law, I argued that the most important task before the Congress was to design a system that could withstand legal scrutiny and would be found to be constitutional. For that reason, I proposed that we expedite the ability of the courts to review the constitutionality of various provisions of the bill, which I find to be legally suspect.
“First, it seems clear to me and many others that the Act may be unconstitutionally stripping the federal courts of jurisdiction over habeas cases. “Relatedly, the Act may violate the exceptions clause under article III of the Constitution by impermissibly restricting the Supreme Court’s review. “Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention. “Fourth, the provisions regarding coerced testimony may be challenged under our Constitution. “Fifth, the Act contains very lenient hearsay rules which rub up against the right of the accused to confront witnesses and evidence. “Sixth, the Act may be challenged on equal protection and other constitutional grounds for how it discriminates against the detainees for being aliens. “Lastly, article I of the Constitution prohibits ex post facto laws. That is what this Act may have created.”
As it relates to coerced testimony and interrogation, my colleague Amos Guiora has something to say about that here. With the Hicks guilty plea, and sentencing likely at the end of the week, plus charges against Omar Khadr likely to be certified in the coming weeks, we should expect some increased Congressional attention to the MC’s. UPDATE: In related notes, Diane Marie Amann provides us with a useful pointer and summary of the case People v. La Frana, a 52 year old Illinois case in which a murder conviction was set aside because the confession upon which it was based had been coerced. Defense Counsel in the case was none other than Supreme Court Justice John Paul Stevens. Check out her post HERE.
Don’t expect Khadr to enter a guilty plea, or to plead his innocence. What is more likely is that he will pull a Saddam, seeking to insert chaos into the courtroom (as detailed in Saddam On Trial).
Khadr previously has stated he will not cooperate with his “infidel pig” lawyer, or the “court of the infidels” which will make for a bit more excitement than the Hicks case. It also puts advocates for the Defense in an interesting position— if Hicks was innocent, and his plea was part of a “brilliant defense maneuver” to get him out of the MC’s and into regular courts, is the opposite true. That is, if Khadr enters a not-guilty plea is his strategy ill conceived? It seems Defense advocates can’t have it both ways and it will be interesting to see how these cases develop.
