There is a danger in approaching this too narrowly, as it is easy for opponents to spin and topple as "protecting terrorists"; it might be better politics and better policy to address it in a broader context of ensuring effective judicial oversight of executive actions including monitoring of US citizens in the "war on terror".

Isn't it more likely that 40 Republicans will filibuster this grave threat to our national security? So it never comes to a vote?

Some of us think MCA stands for Millennium Challenge Account. :-)

As a former DA, Spector understands the importance of habeous corpus better than most. It's nice to see him supporting this. There were a number of other bills (now laws) that he didn't like but had to support in the Republican Congress to his his Judiciary Committee chair. I wonder how many of them he'll be opposing now.

A lot, I hope. It'd strengthen the testicular fortitude of some of the other more moderate Republicans to see him lead the way on this.

So Steve;
You don't want to talk about all the breathless speculation that Saddam may be executed an any moment, and probably prior to Saturday, Jan 30 (tomorrow)?

Is one of your senators up for reelection in 2008? Here is a link to all of the Class II senators. If one of yours is on the list, start pressurig now.

I would love to take the Flag at Distress graphic off my website, but I made a pact to leave it up until Habeas Corpus is resurected.

OBF: Perhaps they will hang him this year for tax purposes.

OBF: Perhaps they will hang him this year for tax purposes.

Pretty funny.

Thanks craigie.:) School is out until Mid-January. I can let my inner snark swim free when there are non students to terrify.

Personally, I think the rush is;
They're afraid that as soon as they turn him over to Iraqi custody, insurgents will bust in and free him.

So sorry Spector, the courts are not bail you out on this one.

While the Senate and the Congress are free to propose changes to this law anytime they want, it seems that the courts are not going to invalidate any of the substantial provisions of the MCA. I believe that the provisions denying federal court jurisdiction over habeas claims brought by detainees was recently upheld by the district court in the Hamdi (bin laden's driver) case. As the Constitution makes clear, Congress has complete authority over the jurisdiction of the lower federal courts. If Congress wishes to withdraw the courts' ability to hear these claims, it clearly has the Constitutional authority to do so.

Chicounsel: well, yeah the courts can't address it.

I'm not sure that more robust habeas corpus provisions have anything to do with the U.S. human rights image. most democratic countries do not have habeas corpus and due process provisions anywhere near robust as the U.S. (see Germany, Japan, France and the UK for starters).

its not like the Geneva Conventions say anything about it.

and quite frankly, I'm not troubled by the denial of full habeas corpus privileges to non-citizens not arrested on U.S. soil...which is what we're talking about here.

there is this very America-centric viewpoint among many American liberals that essential human rights are identical to rights of U.S. citizens in American constitutional jurisprudence. and that's just not so.

there is this very America-centric viewpoint among many American liberals that essential human rights are identical to rights of U.S. citizens in American constitutional jurisprudence. and that's just not so.

1. That's a silly misrepresentation of what this is about
2. To the extent that conservatives want to declare the US to be the greatest country ever, across all space and time, shouldn't it be important to, you know, act great once in a while?
3. Like it or not, if the US is now the only de facto world power (tm), then all the citizens of the world do have some kind of interest in US actions. That interest may not be directly equivalent to US citizens (eg, they can't vote) but their opinions matter.

craigie: um, you miss the point.

we don't have to, um, grant the full benefit of habeas corpus provisions to, um, give them sufficient due process rights to meet international standards.

ya know, like a right of appeal. oh wait, they already have that. (and I don't have any problem with modifying it to make that more robust) but to demand full American habeas corpus is both unnecessary and asinine.

If the war against terror is an ideological one as Dumbya has claimed, then we do not win it by denying human beings rights that are fundamental to our way of life. This is particularly true of habeus corpus which is designed to prevent tyrants from holding people without cause. Plainly the US has done so and done so for extended periods of time and the rest of the world does not give us points for this.

here's the thing, to grant them full access to U.S. courts means that invariably we'll be releasing some people that we shouldn't be.

why? cause a lot of people it will be impossible to prove their guilt beyond a reasonable doubt under American criminal evidentiary admissibility standards.

even under ordinary American police work, if someone has sufficient cash and good enough attorney work it is almost impossible to convict them in an American criminal court. the rich get off because meeting the "beyond a reasonable doubt" standard is an incredibly high bar...we have the luxury of fetishizing it in our domestic lives...but we don't have that luxury with international terrorism.

Who knows? Perhaps pulling at this thread will unravel the delusional sweater they've all pulled up over their heads in reaction to Hamdan.

For those similarly impaired, all this tribunal-tinkering is just an avoidance of the large, elephant carcass stinking up the National Living Room: Hamdan Said Geneva Applies.

Now slowly. There had already been three years of war crimes committed. Not just tribunals. Everything about detention, rendition, torture, etc... All of it. Crimes both international and domestic (US CODE: Title 18,2441. War crimes).

Only Impeachment can save the DC Dems from becoming actively complicit on Jan. 3rd. That day we literally become a War Criminal Nation should they fail to act to stop the ongoing treaty violations.

Sorry, but that's how it works in the reality-based community. And it's also why the regime is planning the biggest diversion in history.

...but to demand full American habeas corpus is both unnecessary and asinine.
Posted by: Nathan on December 29, 2006 at 3:21 PM | PERMALINK

Well, the America-hating traitors have been heard from.

terry, they have fundamental level habeas corpus.

access to a judicial determination and the right of appeal. the full panoply of the American legal system is not a fundamental human right. if it were you better start advocating against the governments of Western Europe.

remember that most democracies are civilian, not common law

As this threat relates to the last thread, it looks like America is being offered a choice here:

Choice A:
Support for Israel, continued dependence on foreign petroleum, massive debt, loss of our treasured American Rights, waving our big American Dicks in the world's face.

Versus Choice B:
Energy independence, political independence, continuance of our treasured American Rights and Freedoms, short term sacrifice for long term economic security, waving our big American Brains in the world's face.

thedeanpeople: actually, Hamdan said that the GC applies unless Congress legislates otherwise.

for the rest of you:

would you be happy if we granted the Guantanamo detainees the full benefit of German habeas corpus? (you know, one of those places where we need to better our human rights image?)

what, you're not happy with no jury, the judge and prosecutor working hand in hand and no right to document production from the prosecution?

Americans can be so myopic...both liberal and conservative.

they actually think that the bill of rights is identical to essential human rights....

While I applaud the effort to revisit (read, throw on the scrap heap) this horrible piece of legislation, I wonder how many Dems that went along with it originally are now going to oppose it? They should be booted out of the Democratic Party for being craven opportunists that would trample all over the Constitution for political gain.

This legislation is NOT needed. If the people we are holding at Gitmo are truly guilty, we have well-established and time-tested rules of procedure and evidentiary standards to deal with them. If we can't prove that they are guilty, we should release them. It's that fucking simple.

19 men armed with boxcutters is NOT sufficient reason to change centuries of criminal jurisprudence, regardless of what these nitwit conservatives say.

and quite frankly, I'm not troubled by the denial of full habeas corpus privileges to non-citizens not arrested on U.S. soil...which is what we're talking about here.

Habeas corpus is not a right of citizens, it is a provision for accountability of the govenrment in its actions against persons generally. Its suspension against any person subject to the power of the US government ought to be limited to situations of the utmost necessity.

there is this very America-centric viewpoint among many American liberals that essential human rights are identical to rights of U.S. citizens in American constitutional jurisprudence.

Not really; few liberals would, for instance, argue that the right to trial by jury in civil cases with an amount at issue of $20, the right to vote attaching at exactly 18 years, or numerous other provisions of US constitutional law are essential elements of human rights. Certainly, though, a large subset of Constitutional rights are held by modern liberals to be expressions of essential, pre-existing huan rights, just as many of those rights were viewed by the framers. And certainly many modern liberals would view that inadequately justified distinctions in the granting of some rights, even if those rights themselves are not fundamental human rights, are themselves violations of fundamental human rights.

OTOH, modern conservatives, as conservatives always have since the genesis of conservatism in the defense of monarchy and aristocracy against classical liberalism, continue to argue for the narrowest set of rights and the narrowest application of those rights, and the preservation of arbitrary government (and particularly executive) power in the name of "security" and "order" when the real motive is the preservation of privilege and the insulation of the actions of the elite from scrutiny.

Nathan: "beyond a reasonable doubt" standard is an incredibly high bar...we have the luxury of fetishizing it in our domestic lives...but we don't have that luxury with international terrorism.

Oh, exactly which terrarists have we released from prison because of our fetish?

here's the thing, to grant them full access to U.S. courts means that invariably we'll be releasing some people that we shouldn't be.

Sure, if we subject them to regular criminal prosecution (which isn't the same thing as habeas corpus. The same thing that happens with domestic crimes, including mass murder and terrorism. So what?

why? cause a lot of people it will be impossible to prove their guilt beyond a reasonable doubt under American criminal evidentiary admissibility standards.

Right. And that would be an argument (though, as noted, one equally applicable to mass murder committed by US citizens, so should we now remove procedural rights from people accused of such offenses?)

even under ordinary American police work, if someone has sufficient cash and good enough attorney work it is almost impossible to convict them in an American criminal court.

Strange. Fantastically wealthy defendants that can afford the best attorneys plead guilty to crimes all the time, and those that go to trial often get convicted. If it were "almost impossible" to convict them, you'd expect them not to plea out...

That being said, I don't think most al-Qaeda detainees have that kind of wealth available for their defense. (And if they did, bleeding al-Qaeda to death with legal fees wouldn't be a bad idea, anyway.)

Of course, again, allowing full habeas corpus review is not the same as allowing access to the regular criminal justice system, anyhow.

the rich get off because meeting the "beyond a reasonable doubt" standard is an incredibly high bar...we have the luxury of fetishizing it in our domestic lives...but we don't have that luxury with international terrorism.

That high bar provides security and certainty for the citizenry that the government is punish the right people, and not just punishing people to be seen as doing something. For less important crimes, it is perhaps most important for the guarantee it provides the wrongly accused, for more important crimes where the government would be most motivated to be seen to be acting, it is most important for the guarantee it provides society. The security provided by a high bar of proof is not a "luxury", it is a fundamental guarantee against arbitrary government putting appearance over substance and betraying the public interest.

one thing is immediately and obviously clear:

cmdicely knows nothing about civilian criminal law.

further, habeas corpus has not been suspended for the detainees. the full panoply habeas corpus under American law has been.

the basic common law standard (which pretty much only exists in English speaking countries) for habeas corpus (which has been around for centuries) has been met. they have the right to a judicial determination and the right of appeal. that is the baseline.
something similar could reasonably be called the international standard in democratic countries. and that has been satisfied.

no, I don't think that the Germans or the Japanese or the French will be especially impressed if we also extend full jury trials, Miranda warnings and all the rest...considering that if an American was arrested in Germany, France or Japan tomorrow he or she wouldn't get any of that...and somehow no one here is enraged about that.

but, no, the U.S. legal system is the be all and end all, the wonder of the modern world...admired by all. um, no. don't fetishize our system. there are basic rights and they have been satisfied.

Oh, exactly which terrarists have we released from prison because of our fetish?
Posted by: alex on December 29, 2006 at 3:52 PM | PERMALINK

Gen. Poindexter (illegally sold weapons he stole from US taxpayers to terrorists), Judith Miller (Propaganda Terrorist) and I Lewis Libby (another Propaganda Terrorist), to name a few.

Hell, Convicted Economic Terrorist Ken Lay might have actually done some time had we not given him his "due process".

Extradite Rumsfeld,

Good point. Since, as Nathan says, the MCA only affects non-citizens, we'll have to strip Bush, Cheney, Rumsfeld, et al of their citizenship before throwing them in a dungeon. What a nuisance.

one thing is immediately and obviously clear:

cmdicely knows nothing about civilian criminal law.

What is immediately obvious is that Nathan has got nothing here, and is resorting (as he often does when he has nothing) to handwaving without addressing the substance of opposing arguments.

Its also immediately obvious that Nathan doesn't know what this discussion is about, since its not about "civilian criminal law", though Nathan keeps trying to pretend it is.

"Strange. Fantastically wealthy defendants that can afford the best attorneys plead guilty to crimes all the time, and those that go to trial often get convicted. If it were "almost impossible" to convict them, you'd expect them not to plea out..."

they get off far more than the average for the same crimes.

"That being said, I don't think most al-Qaeda detainees have that kind of wealth available for their defense. (And if they did, bleeding al-Qaeda to death with legal fees wouldn't be a bad idea, anyway.)"

eh....a heck of a lot of people volunteering to take their cases pro-bono, including some very high-powered firms and defense attorneys.

"Of course, again, allowing full habeas corpus review is not the same as allowing access to the regular criminal justice system, anyhow."

yes it is ("full habeas corpus" that is). you are correct that allowing habeas corpus in and of itself is not the same thing. but I already said that. and we already have instituted something like that. and like I said, I'm not opposed to making that more robust.

"The security provided by a high bar of proof is not a "luxury", it is a fundamental guarantee against arbitrary government putting appearance over substance and betraying the public interest."

It is a luxury in the sense that it only works in stable, relatively low-crime, wealthy societies. it would not work in a place like Iraq right now...where it has to be nearly impossible to prove anyone guilty beyond a reasonable doubt...

that high bar is going to be very difficult to meet for terrorists captured in Afghanistan or Pakistan..by the nature of the battlefield.

and I'll be damned if we have to release Khalid Mohammed (the living person indisputably most directly responsible for 9/11)...if that happened I would kill him myself (though there'd be a long line ahead of me). I had a friend jump from the south tower that day.

and could we convict Khalid in an American criminal court? probably not. is letting him go too great a price to meet your idealism? yes it fucking is.
McVeigh and co. are different because of the circumstances of their apprehension.

cmdicely:

I was responding to this paragraph:

"Certainly, though, a large subset of Constitutional rights are held by modern liberals to be expressions of essential, pre-existing huan rights, just as many of those rights were viewed by the framers. And certainly many modern liberals would view that inadequately justified distinctions in the granting of some rights, even if those rights themselves are not fundamental human rights, are themselves violations of fundamental human rights."

what you meant to say was "held by modern AMERICAN liberals"

unless free speech, the right against self-incrimination, the right to a jury of your peers -- or any jury at all, the right to a fair trial, etc. etc. are not part of this "large subset" cause if some of those are, then you are clearly unfamiliar with civilian criminal law, which plenty of non-American modern liberals are quite happy with

"Oh, exactly which terrarists have we released from prison because of our fetish?"

um, the reason why we're not granting the detainees the full panoply of American criminal law is so we don't have to do that.

and the reason why civilian law is directly on point is that people were disputing this:

"I'm not sure that more robust habeas corpus provisions have anything to do with the U.S. human rights image. most democratic countries do not have habeas corpus and due process provisions anywhere near robust as the U.S. (see Germany, Japan, France and the UK for starters).

its not like the Geneva Conventions say anything about it."

Nathan: the reason why we're not granting the detainees the full panoply of American criminal law is so we don't have to do that

Good point. If only we'd had the MCA in the past, we wouldn't have had to release the people responsible for the 1993 WTC bombings.

Nathan: McVeigh and co. are different because of the circumstances of their apprehension

And yet they were convicted in US courts.

Alex, see what I wrote above:

"McVeigh and co. are different because of the circumstances of their apprehension."

i.e. they were captured by police work on U.S. soil.

and

"that high bar is going to be very difficult to meet for terrorists captured in Afghanistan or Pakistan..by the nature of the battlefield."

alex: what part of "circumstances of their apprehension" did you not get?

(and, you'll notice, that if there was anyone behind McVeigh, analogous to Khalid, we didn't get him)

Nathan: I'll be damned if we have to release Khalid Mohammed

I understand your anger. Personally, I'm still pissed at the genius who refused to let the 4th Marine ID take a crack at OBL (who is also alleged to have had something to do with 9/11).

Ok, with geniuses like that running the US gov't, maybe we can't afford habeas corpus (those 1990's convictions were under different circumstances).

"Right. And that would be an argument (though, as noted, one equally applicable to mass murder committed by US citizens, so should we now remove procedural rights from people accused of such offenses?)"

actually, its not equally applicable. its a lot easier to do a thorough and legal investigation of an American than it is of a Pakistani, or a Sudanese, or a Saudi Arabian (especially!!!) or an Afghani or a Somali...etc.

alex: the incompetence and/or poor judgment of some in the U.S. government is unfortunately, already a fact. and I'll be damned if the fact that Khalid Mohammed didn't get counsel after his apprehension, or even the fact that he was somewhat coerced for information, (and I'm neither condemning nor endorsing the foregoing), result in his being set free.

in this matter, Bush's incompetence is not an excuse for the denial of justice...or vengeance for that matter.

"I understand your anger. Personally, I'm still pissed at the genius who refused to let the 4th Marine ID take a crack at OBL (who is also alleged to have had something to do with 9/11)."

I agree that Tommy Franks was (and is) an idiot.

they get off far more than the average for the same crimes.

And how much of that is rich people getting off when they are guilty and how much is poor people going to jail when they are, in fact, innocent?

eh....a heck of a lot of people volunteering to take their cases pro-bono, including some very high-powered firms and defense attorneys.

And a lot of that is specifically because of the perception that they are being subjected to unjust process and that establishing that would be a big feather in anyone's cap.

what you meant to say was "held by modern AMERICAN liberals"

Well, I would have thought that was clear enough from context, but, yes, we were discussing American liberals. That being said, though...

unless free speech, the right against self-incrimination, the right to a jury of your peers -- or any jury at all, the right to a fair trial, etc. etc. are not part of this "large subset" cause if some of those are, then you are clearly unfamiliar with civilian criminal law, which plenty of non-American modern liberals are quite happy with

You seem to have this odd quirk of consistently refer to civil (as opposed to common) law systems as civilian (used properly, this would be opposed to military) law. This is particularly grating in a discussion where you also conflating full habeas review of military commissions with transforming those commissions into civilian (in its proper use) courts, where it becomes unclear when you refer to, e.g., "civilian criminal law" sometimes whether you mean "civilian criminal or "criminal law in a civil law system".

At any rate, most of the rights you discuss are fairly widely accepted, in principal, as essential human rights by liberals of any nationality, and incorporated into both declarative and binding international agreements, including, in the former category, the UDHR. There are, of course, differences in the way they are applied in different places that notionally accept them in principal (many of which bother local and international liberals), and even where a particular application is not seen as a fundamental right, as I said before, "many modern liberals would view that inadequately justified distinctions in the granting of some rights, even if those rights themselves are not fundamental human rights, are themselves violations of fundamental human rights."

actually, civilian is the correct usage. I did a law school semester in the UK. I can assure you that it is the British usage. its understandable that you wouldn't know that though..as most Americans don't say that.

Nathan: I agree that Tommy Franks was (and is) an idiot.

We agree there, but in all fairness to him, he was under great pressure to ramp up for an invasion of Mexico (eh, well, some country that was irrelevant to terrorist attacks on the US).

"And how much of that is rich people getting off when they are guilty and how much is poor people going to jail when they are, in fact, innocent?"

er, and this is relevant how? it doesn't exactly negate (indeed, it reinforces it) the point that money buys better counsel which gets you off more...cause often there's doubt to be found if counsel is good enough.

"At any rate, most of the rights you discuss are fairly widely accepted, in principal, as essential human rights by liberals of any nationality, and incorporated into both declarative and binding international agreements,"

like I said, you know nothing about civilian law.
last time I checked, neither of France, the UK, Austria or Germany have freedom of speech. talk to David Irving about that.

Germany does not have jury trials...as with some other civilian countries. in some countries, like Germany and Japan, the prosecutor and judge work so closely together that the concept of a "fair trial" is simply fraudulent -- see Japan's over 90% conviction rate, some civilian countries do not have a right against self-incrimination.

so there you have it. only American liberals think that the American judicial system is a necessity for everyone else. imperialism I call it.

Nathan: that high bar is going to be very difficult to meet for terrorists captured in Afghanistan or Pakistan..by the nature of the battlefield

I guess that, because he was arrested in Pakistan, we couldn't convict Khalid Shaikh Mohammed if the full breadth of habeas corpus applied to him. Just like we couldn't convict Ramzi Yousef.

alex, I'd suggest that the waterboarding would be an issue. but beyond that...considering that the 9/11 hijackers can't testify against him..and there's no forensic evidence connecting him...yeah, a conviction would be difficult without his coerced confession.

on a pedantic note:

there is some discussion among legal theorists whether anyone could ever be convicted of a crime beyond a reasonable doubt (this phrasing is, after all, a quirk of history in British and American law -- not commonly used elsewhere)..the argument is that there is always a reasonable doubt. and so juries are actually applying a lesser standard of some sort when they convict someone.

I'd also suggest that the nature of 9/11 was such that Khalid Mohammed could justifiably argue that no American jury would or could give him a fair trial.

Nathan, I am a little late to respond, but I am trying to get a little work done yet today so I was distracted. I did not suggest that habeus was a fundamental human right world wide, but that it was fundamental to our ideology and at least England's as well. That is what we are selling in the world marketplace of ideologies, yet we are saying we will not apply it to the folks who our government has decided, wrongly in many documented instances, are terrorists. It is my understanding that under the MCA a detainee's "rights" are to a Star Chamber proceeding--not exactly habeus as it has evolved here and in England. Of course you are correct that the reason Dumbya does not want to afford true habeus rights to the detainees is that the courts would likely conclude some guilty persons be released. The concern I have is that under the MCA innocent people will remain incarcerated. That is always the trade off when rights are afforded to the accused. My argument is that by affording such rights to those detained by the government our ideology is more likely to be seen as superior to that of our enemies who seem to subscribe to killing everyone and "letting God decide who is guilty and who is innocent"

indeed, just to prove my British profs were not an aberration, a quick google search confirms that "civilian law" is indeed a standard term for non-common-law countries (virtually every judicial system in the world is either civilian or common law -- including Asia and Africa, and including countries that were never colonized -- i.e. Turkey (which simply copied the Swiss civilian system))

Nathan: there is some discussion among legal theorists whether anyone could ever be convicted of a crime beyond a reasonable doubt ... so juries are actually applying a lesser standard of some sort when they convict someone

No, the juries are simply using their interpretation of "reasonable" - a word that, perhaps intentionally, leaves a lot of room for individual judgement. Now that I've solved that puzzle, can I collect the paychecks of those "legal theorists"?

actually, the juries are given a definition that they are supposed to follow

actually, civilian is the correct usage.

"Civilian" may properly be used as an adjective meaning, roughly, "pertaining the civil law"; "civilian law" instead of "civil law" isn't correct, "civilian criminal law" might not be technically wrong (I think it is, and can't immediately locate any uses of that for what you mean besides yours) but is certainly unnecessarily confusing where relations of civilian vs. military laws as well as civil law vs. common law systems are relevant to the discussion.

I did a law school semester in the UK. I can assure you that it is the British usage.

Most British sources I've encountered identify the civil law as the "civil law" no differently than American and other English-language sources, in fact, the "Civil Law" vs. "Common Law" distinction and terminology is an English (as in the country, not the language) invention to distinguish the judge-made law of England from the systems of law descending from the Roman Corpus Iuris Civilis. (With, frequently, an additional distinction for the Canon Law, but that's neither here nor there.)

er, and this is relevant how?

Its relevant to your claim that the result would be people getting off that shouldn't. If the principal advantage of the power of money isn't that guilty people get off that shouldn't but innocent people get off that should, that strikes against your argument. Merely pointing to richer people getting off more often, to the extent its true, does not prove your case (it does point to a fundamental inequity in the American justice system, but that's not the issue.)

like I said, you know nothing about civilian law.

Saying it doesn't make it so. That being said, I don't pretend to be particularly well versed in the civil law (I probably have a better grasp of Catholic canon law than any particular civil law system.)

last time I checked, neither of France, the UK, Austria or Germany have freedom of speech.

Last I checked, the UK was no more relevant to civil (or "civilian" if you prefer that term) law than the US. Furthermore, last I checked, in at least the UK and possibly all of those countries, the European Convention on Human Rights, providing freedom of expression was both a binding treaty and incorporated into the domestic law. Yes, they interpret that freedom as having different boundaries that US courts do, and as I noted above, such rights "are applied in different places that notionally accept them in principal (many of which bother local and international liberals)".

Germany does not have jury trials...

"I agree that the right to trial by jury is not one widely regarded as fundamental rather than instrumental to the right to a fair trial.

in some countries, like Germany and Japan, the prosecutor and judge work so closely together that the concept of a "fair trial" is simply fraudulent -- see Japan's over 90% conviction rate

ISTR the conviction rate once charges are filed in the US is something over 80%, and even higher for cases that go to trial. That may be off a bit, but I'm certainly not going to take that conviction rate alone as convincing proof that the idea of "fair trial" is "simply fraudulent"; at any rate, that countries may have an unfair system does not mean that international liberals support that element of the system as desirable or just.

there is some discussion among legal theorists whether anyone could ever be convicted of a crime beyond a reasonable doubt (this phrasing is, after all, a quirk of history in British and American law -- not commonly used elsewhere)..the argument is that there is always a reasonable doubt. and so juries are actually applying a lesser standard of some sort when they convict someone.

Its seems quite odd that people would make that argument if they understood the definitions generally used for that term, but legal theorists like to argue...

indeed, just to prove my British profs were not an aberration, a quick google search confirms that "civilian law" is indeed a standard term for non-common-law countries

Strange that neither my searches of dictionaries or Google confirms that.

Try this for a reality check.
British Common Law is based on terms of surrender following the Battle of Hastings in 1066.
The tone is to give the appearance of fairness while denying the realty to a defeated and enslaved people.
Now even that truncated illusion is too strong to be allowed as reasonable for the disposition of enemy aliens imprisoned under conditions far from common civil control.
If this is to be sold as fair play I want to know who is to be the supplier of the snake oil. It'll take quite the amount for even minimal impact on a globe cynical of U.S. ethics.

a globe cynical of U.S. ethics.

Well, as she has been other places and interacted with other cultures...yeah, she is...:)

Nathan writes:

and quite frankly, I'm not troubled by the denial of full habeas corpus privileges to non-citizens not arrested on U.S. soil...which is what we're talking about here.

I agree. However, it's not entirely clear to me that the MCA doesn't apply to US citizens. It seems to be written in a somewhat ambiguous way so that a future administration can unilaterally designate an American citizen as an enemy combatant, and hold him/her indefinitely without habeas corpus. I would be reassured if Congress inserts language that explicitly prohibits that scenario. Do you agree that what happened to Jose Padilla is a violation of our Constitution?

cmdicely: um, try googling the following "'civilian law' France"

I can assure you that you're wrong on this one.
in fact, just check the fricking wikipedia entry.
cheez. I had two British law professors use the term consistently. not my problem that it confuses you.

Andy: yup, I was pretty dismayed by the Padilla thing and gratified when they moved him back into the regular system. I think that the administration realized that once even Scalia had made it clear that habeas corpus could not be abrogated for U.S. citizens that their position was untenable.

Just to expand on my concerns, the act states:

A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant.

Which is different from saying, "A military commission under chapter shall *only* have jurisdiction.."

It's generally agreed that according to the MCA, American citizens can be designated as illegal combatants. The only part of act that says what the commission can't do (as opposed to saying what it can do) says the commission doesn't have jurisdiction over legal enemy combatants. I find it odd that the only explicit restriction in the MCA deals with legal enemy combatants, and not include language dealing with citizens. I'm not a student of law, so I don't know how this would play out in a court of law, but there seems to be enough ambiguity for an administration to be able to use the act on citizens.

actually, the phrase you quote pretty clearly limits the Act to alien unlawful combatants. so, no, American citizens can't be tried under the MCA.

(its exclusive because the commissions don't have any indigenous authority -- they only have the authority the MCA gives them...in other words, for purposes of legal parlance, an "only" is unnecessary)

"It's generally agreed that according to the MCA, American citizens can be designated as illegal combatants."

by who?