The purpose of the Military Commissions Act of 2006 is to establish procedures for the trials of Guantanamo prisoners who constitute "unlawful enemy combatants" and now face trial for "violations of the law of war and other offenses triable by military commission." The military tribunal law creates new rules for interrogating and conducting trials of suspected terrorists and suspends the right of habeas corpus for any foreign citizen who is an unlawful enemy combatant.

Section 948a of the new law defines an "unlawful enemy combatant" as:

(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.

If the person has not already been adjudged an unlawful enemy combatant under (ii), then the military would presumably be required to prove that status under part (i) as part of it's case for the war crimes prosecution. Then the new law would apply that bans legal rights for prisoners.  

However, a new report by Seton Hall University -- to be published online later today -- found that the proceedings used to adjudge a suspected terrorist as an "unlawful enemy combatant" under part (ii) and thus subject to trial for war crimes, was a total sham that was devoid of any legal rights.

Two lawyers and more than 2 dozen law students from Seton Hall University analyzed the transcripts and records of the military hearings of 393 prisoners that determined whether a prisoner should remain imprisoned.  The Seton Report found that for the past years, the US provided sham proceedings to designate the prisoners as "enemy combatants."   No witnesses were called and evidence was denied to the prisoners.

The military held Combatant Status Review Tribunals for 558 prisoners at Guantanamo between July 2004 and January 2005 and found all but 38 were enemy combatants. The prisoners did not have a right to a defense attorney, only a military "personal representative."  The personal reps were silent at the hearings 14% of the time, made no "substantive comments" 30% of the time, and even "appeared to advocate the government's position" in some cases.

The Seton Hall Report found:

"The government did not produce any witnesses in any hearing."

"The military denied all detainee requests to inspect the classified evidence against them."

"The military refused all requests for defense witnesses who were not detained at Guantanamo."

"In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison."

"In 91 percent of the hearings, the detainees did not present any evidence."

"In three cases, the panel found that the detainee was "no longer an enemy combatant," but the military convened new tribunals that later found them to be enemy combatants."

The gravity of this injustice is highlighted by the fact that not even the government considers these prisoners to be terrorists that quality for enemy combatant status:

"A Seton Hall Law School analysis of the Pentagon's own findings reveals that the U.S. government considers only 8 percent of 507 Guantánamo detainees to be al-Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection to al-Qaeda or Taliban."

The military excuses the failure to provide rights to prisoners on the grounds that it is not a "criminal trial and is not intended to determine guilt or innocence. Rather, it is an administrative process ... to confirm the status of enemy combatants detained at Guantanamo as part of the Global War on Terrorism."

So, the military says that these proceedings do not require legal rights because it is merely a status hearing to determine whether the prisoner has the status of unlawful enemy combatant.  But, if that person is adjudged to be an unlawful enemy combatant, then the prisoner has passed the first hurdle of the government's case to prosecute for war crimes under the new military tribunal law. In any event, the prisoner adjudged to have the status is not being released from Guantanamo prison as has been the case for the few prisoners who were found not to be unlawful enemy combatants. Therefore, if the prisoner is determined to have the status of unlawful enemy combatant, then the prisoner remains in prison.  

The broad issue of whether constitutional rights, such as the right to counsel, apply to administrative status hearings was determined by the US Supreme Court in 1967 in the context of juveniles. This is not to say that any terrorist is equivalent to a juvenile offender, but only that the broader issue whether legal rights apply to status adjudications that can result in imprisonment was determined in the juvenile context.  

In the case of In re Gault, the US Supreme Court recognized the motives to protect the children, but also the reality that juveniles were accused of some type of misconduct and if adjudged the status of a delinquent would then be sentenced to an institution like an "Industrial School" where the juvenile's liberty would be restrained for years:

"It is of no constitutional consequence -- and of limited practical meaning -- that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a "receiving home" or an "industrial school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time."

The court  held that constitutional due process requires that proceedings which determine delinquency status, which then results in the juvenile being committed to an institution that functions as a prison by limiting freedom, then the juvenile has a constitutional right to be represented by counsel at that proceeding.

Similarly, when a suspected terrorist is subjected to an administrative proceeding to determine whether he or she is an unlawful enemy combatant, that person should be provided constitutional rights like an attorney because the consequences of this status adjudication is to keep the prisoner at Guantanamo and perhaps charge that prisoner with war crimes.  While Sen. Dodd introduced new legislation called the Effective Terrorists Prosecution Act to remedy the problems with Bush's military tribunal law, there is no provision reported which addresses the unfairness of this status determination. If changes are not made to the status determination hearings, then the US will have a bifurcated process whereby some prisoners may be afforded rights not available to other prisoners.

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