“The original military commissions in Gitmo were carried out under presidential order and ruled unlawful by the Supreme Court.”Both Mark Levin and Justice Clarence Thomas were alarmed by that judicial legislation. And while Ann Coulter is now ‘out’ she is a smart scholar and she too wrote a strong legal opinion.
Justice Thomas was on the losing end of a 5-3 decision.
The opinions of Mark Levin or Ann Coulter do not overrule or change the Supreme Court ruling.
Holding a Gitmo military tribunal without Congressional approval could subject the officials involved to a charge of war crimes (violation of Geneva convention) in addition to violation of U.S. law.
See Opinion of the Court at 613:
Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and precepts of the law of nations,” Quirin, 317 U. S., at 28—including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20–21, 23–24. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.
The MCA only applies to alien unlawful enemy combatants. No such commission could be authorized to function against an American citizen in the United States for an alleged domestic crime.
The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues Jennifer K. Elsea Legislative Attorney August 4, 2014, R41163
At page 9:
Citizens who fit the definition of “unprivileged enemy belligerent” are not amenable to trial by military commission under the MCA.
In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court positively held that the Gitmo detainees had the constitutional privilege of habeas corpus, and in so doing struck down the 2006 MCA § 7 as unconstitutional.
Held:1. MCA § 7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section 7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to . . . detention” within that section’s meaning. Petitioners argue to no avail that § 7(b) does not apply to a § 2241(e)(1) habeas action, but only to “any other action” under § 2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in § 2241(e)(2) cannot be understood without referring back to § 2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of... detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA § 7 is valid, petitioners’ cases must be dismissed. Pp. 736–739.
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 739–771.
The Military Commissions Act of 2006 was revised by the Military Commissions Act of 2009. It is codified Federal law under Title 10, United States Code.
https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47A
10 U.S. Code Chapter 47A - MILITARY COMMISSIONSSUBCHAPTER I—GENERAL PROVISIONS (§§ 948a – 948d)
SUBCHAPTER II—COMPOSITION OF MILITARY COMMISSIONS (§§ 948h – 948m)
SUBCHAPTER III—PRE-TRIAL PROCEDURE (§§ 948q – 948s)
SUBCHAPTER IV—TRIAL PROCEDURE (§§ 949a – 949o)
SUBCHAPTER V—CLASSIFIED INFORMATION PROCEDURES (§§ 949p–1 – 949p–7)
SUBCHAPTER VI—SENTENCES (§§ 949s – 949u)
SUBCHAPTER VII—POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS (§§ 950a – 950j)
SUBCHAPTER VIII—PUNITIVE MATTERS (§§ 950p – 950t)
https://www.law.cornell.edu/uscode/text/10/948c
10 U.S. Code § 948c - Persons subject to military commissionsAny alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.)
https://www.law.cornell.edu/uscode/text/10/948d
10 U.S. Code § 948d - Jurisdiction of military commissionsA military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.)
Whatever acts, real or imagined, that may apply to the 2020 election, the persons involved would not qualify as alien unprivileged enemy belligerents, nor would they be subject to the Uniform Code of Military Justice for the U.S. Armed Forces, nor would they be subject to the laws of war.
Thank you so much for the time and effort!
Clarence Thomas was incorrect?
I need to read this when I have the time.
“Holding a Gitmo military tribunal without Congressional approval could subject the officials involved to a charge of war crimes (violation of Geneva convention) in addition to violation of U.S. law.”
Under what circumstances does it become easy to get approval from Congress?