Bush v. Dodd: The Race To Not Change Military Tribunal Law

On November 16th, Sen. Dodd introduced legislation to amend Bush's military tribunal law (MCA) which was recently enacted. As Dodd stated, the purpose of his legislation, which will be addressed early in 2007, is to undo Bush's law and seeks to "redesign the court system" and "significantly, accelerate civilian court scrutiny  of the system's constitutionality."  And, defense lawyers are continuing to challenge the constitutionality of military tribunals, which means at some point the courts could decide that any trials should be held in civilian courts.

On the following day, Bush's response was to inform Congress that he will be beating them to the punch, so to speak, by having the Pentagon invoke "emergency authority" to obtain $125 million to construct a military mini-city to conduct war crime trials in accordance with the MCA that the Democrats want to rewrite.  This mini city would be constructed in 3 months and should be ready by July 2007.  

This is interesting because last month, the Pentagon was still planning to seek authorization and funding for this project from Congress while it was still controlled by the GOP.  But, lawmakers objected to the cost and need for the project. So, by using this newly founded Pentagon special emergency authority, Bush gets the funding for the project without proceeding through the normal funding process at Congress. By statutory law, the Pentagon would get the $125 million from existing appropriated funds that have not yet been obligated to military construction projects. Then, the Pentagon also wants Congress to restore the funding for the projects that are preempted by this process. Thus, the upshot is Bush get funding for a project not approved by Congress.

Also, Dodd's bill provides for expedited review of Bush's MCA to ensure it is constitutional. What if the courts say that it is not, or that civilian courts must be used to provide real trials with rules mandated by the constitution. Prior to enactment of Bush's MCA, Bush held "trials" under his own rules that the courts have held are not constitutional. Now, Bush wants to hold "trials" under his new MCA, which legal experts have agreed provides good grounds to be found unconstitutional, but the law has not yet been judicially tested. It seems to make more sense to have a court-approved process in place before spending $125 million for facilities to hold "trials" pursuant to Bush's new judicially untested law.

The facts about this project just smell a little fishy.

The Pentagon's contractor solicitation notice describes the mini-city that it wants constructed to conduct war crimes trials at Guantánamo Bay:

The Government intends to solicit a Cost Plus Award Fee Design Build Construction Contract to provide all design, engineering, and construction  for a Legal Compound at U.S. Naval Station, Guantanamo Bay, Cuba. Most facilities will be co-located with the existing courtroom at McCalla Field. The work includes, but is not limited to, a secure perimeter, siting/utilities for up to two new courthouses to include a courthouse with two large courtrooms, communications/viewing center, CCTV feed from all courtrooms, dining facility for up to 800 personnel, Interview facility, communications facilities and equipment, transportation facility to service approximately 100 Government Owned Vehicles, and housing for 800-1200 personnel.

In order for this project to be legal, Bush must establish that the mini city is necessary due to a national emergency. The Pentagon may undertake construction projects not otherwise authorized by law when there is a declaration of war or national emergency. In this case, the national emergency appears to be - once again - the "war on terror."

Keeping with the pattern that neither the public nor Congress have a right to know how our money is spent or how our government is operated, the "Department of Defense spokesmen would not say when -- if ever -- the Pentagon had last invoked similar authority" that was designated as "emergency authority."  

However, a clue was provided as to the source of authority for this project. In a November 17th letter to some lawmakers, the Deputy Defense Secretary explained "the unusual move" as necessary "due to national security implications and extreme urgency, emergency construction was authorized pursuant to Section 2808 of title 10, United States Code.''

Section 2808 provides the Defense Secretary with construction authority when there is a "declaration of war or national emergency":

(a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.

This authority can only be triggered by a war declaration or a presidential declaration of a national emergency. Given that Congress did not issue a war declaration for the Iraq war, but only a resolution of authority, it does not seem likely that Bush is relying on a war declaration as the condition precedent for this construction authority. That only leaves a national emergency as the triggering authority, which is consistent with the media report that the Pentagon "appears to be relying on a National Emergency Construction Authority Executive Order, which President Bush signed more than five years ago -- after the Sept. 11, 2001, World Trade Center and Pentagon attacks." Seems Bush has issued several Executive Orders unknown to us.

So, what is the "extreme urgency" that has "national security implications" which warrant the exercise of this perhaps previously unexercised "emergency authority" by the Pentagon?  These grand facilities are needed, according to an internal worksheet for Project 68043, because the Pentagon "anticipates trying `75 to 80' of the 430 or so detainees under an `increased operations tempo.'"

Military tribunals have previously been conducted on an "on-again, off-again" schedule. So, why the need now to rush through "trials" and why are the existing facilities not sufficient?  Several facts indicate that Bush is simply trying to obtain convictions before Congress or the courts can change the law.  This is an issue of both political will and governing legal standards. If Bush obtains convictions of all of the major suspected terrorists, will Congress then have the political will to change the law?  And, assume that Dodd's bill is enacted into law, but Bush obtains convictions under the MCA before Dodd's law becomes effective.  If the prisoner has a constitutional claim, that issue may not be mooted. But, what if the issue is a nonconstitutional claim about a standard in the MCA that is later changed by Dodd's law.  In that case, the law in place at the time governs.

Here are some clues that Bush may be trying to game the system. One, this mini city will cost $125 million to hold military tribunals for 75-80 prisoners.  That is over a million dollars per trial. True, once the mini city is constructed, trials may be held for hundreds of prisoners over decades of war, so the cost will be spread out. But, part of that huge multi-million dollar tab may be related to the need for a quick 3-month construction completion date. So, why is Bush willing to spend so much money to try prisoners on this speedy fast track after sitting in neutral for years?

Two, why are the existing facilities not sufficient for military tribunals? The Pentagon is planning to hold "multiple trials in multiple venues -- even as Justice and Defense Department lawyers are still writing new guidelines for new trials."  It almost sounds like assembly-line "justice" to get all the big cases decided before the law can be changed.  

Section 2808 authority was intended to be used for true emergencies rather than gaming the system to achieve convictions. The statute itself declares that it is a special power to be used for projects not otherwise authorized by law when there is a national emergency or war declaration. Moreover, the statute indicates that when such a grave situation exists, it is then justified for our government to freeze other military projects that presumably are less important when compared against the national emergency in order to provide the funding for the national emergency project. This mini-city project will apparently require that some military construction project which has already been approved by Congress to be frozen in order to fund the $125 million project:

Unclear is what defense projects will be set aside and put at risk with the extraordinary move.

This is because Section 2808 provides that such military construction projects "may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

This means that existing military construction projects, such as family housing, could be axed in order to pay for this mini-city.  And, that means that Bush also deems gaming the system to obtain speedy convictions of people that have been imprisoned for years is more important than providing housing to our soldiers who risk their lives each day. Need I say more.

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  • Display: Sort:
    Why the speed? (none / 0) (#1)
    by aw on Tue Dec 05, 2006 at 04:50:36 PM EST
    It almost sounds like assembly-line "justice" to get all the big cases decided before the law can be changed.  

    He wants to hurry up and execute them.  Dead men tell no tales.

    Americans might do well not to complain (none / 0) (#2)
    by Edger on Wed Dec 06, 2006 at 11:34:19 AM EST
    Jose Padilla and the Military Commissions Act
    Jacob G. Hornberger writin at LewRockwelldotCom, October 19, 2006
    Anyone who hoped that U.S. military detention of Americans accused of terrorism expired with the transfer of American citizen Jose Padilla from military custody to Justice Department custody have seen their hopes dashed by the Military Commissions Act that the president signed into law yesterday. Although the act limits to foreign citizens the use of military tribunals and the denial of habeas corpus, any person, including American citizens, can still be labeled and treated as an "unlawful enemy combatant" in the war on terrorism.

    What does that mean for the American people? It means the same thing it did for Jose Padilla. You'll recall that Padilla was arrested in Chicago for terrorism and transferred to military custody, where, according to Padilla, he was tortured and involuntarily injected with drugs.

    The government's position is that since the entire world is a battlefield in which the war on terrorism is being waged, U.S. officials now have the power to arrest any American suspected of terrorism, place him in military custody, and subject him to the same "unlawful enemy combatant" treatment that Padilla received, until the war on terrorism has finally been won, no matter how long that takes.
    Currently, under the Second Circuit's decision in Padilla, and now also under the Military Commissions Act, the president has the power to order the military arrest and incarcerate any number of Americans suspected of terrorism. Americans would still have the right to file a petition for writ of habeas corpus in federal court because the Military Commissions Act cancelled that right only for foreigners, not Americans. Keep in mind, however, that a habeas corpus hearing is not a full-blown trial to determine guilt or innocence but is simply designed to determine whether the government has legal justification for holding a prisoner. All the government would have to do at the habeas corpus hearings is provide some evidence that the Americans it is holding in military custody have engaged in some act of terrorism and then cite the Second Circuit opinion and the Military Commissions Act in support of its power to continue detaining them.
    How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn't. Under the Military Commissions Act, trial by military tribunal is limited to foreigners.
    The irony is that while foreigners will be accorded the kangaroo tribunal treatment, Americans accused of terrorism will continue to languish in military prison indefinitely without the benefit of a trial. Of course, given that the tribunals will have the power to impose the death penalty, Americans might do well not to complain about their indefinite detention.

    Good diary, Patriot. Thanks for all the digging and research you do to keep light shone on this travesty.