Abandoning the Constitution to Military Tribunals

Village Voice ^ | 11/21/01 | Nat Hentoff

[DugwayDuke]

"In my post I merely noted that with UCMJ tribunals at the end of the day the final decision is made by an Article III judge; that is the accused has the right to appeal to a 'real' court. The system set forth in the EO abolishes this procedure."

Certainly but "836. ART 36. PRESIDENT MAY PRESCRIBE RULES" states: "(a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter."

Noting the "may not be contrary to or inconsistent with this chapter.", Bush's EO may not preclude Appeals consistent with Chapter 10. Chapter 10 identifies several Appeals Courts including the Court of Military Review, The Court Of Military Appeals, and USSC. The Court of Military Review is JAG, so it probably doesn't meet Article III criteria, but USSC certainly does.

What seems to have some upset are the words: "(8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary." Some seem to think this would preclude any reveiw or appeal except to the President. That would be prohibited by 836 quoted above. Chapter 10 860 Art 60 requires: "the findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence." All (8) does is state that the President is the convening authority and that the record shall be sent to him or his designee.

[Kay Soze]

I am not an Atty.

I do question how the president can set aside the US Constitution and only be challenged politically but not legally.

Is there provision(s) to stop a president from simply "shredding" the constitution?

And if there is why haven’t those steps been taken or started?

I recall Nixon resigning not because of the break in but because he fired the special prosecutor assigned to investigate the cover up, which it was revealed was a violation of the constitution. Impeachment proceedings were imminent so he quit.

I am curious if so many legal eagles know for certain these tribunals are illegal and shred the US Constitution it would then be a simple matter to start confronting this in the courts.

Why haven’t they done so?

[backup]

Is there provision(s) to stop a president from simply "shredding" the constitution?

The Second Amendment.

[Southack]

"I am curious if so many legal eagles know for certain these tribunals are illegal and shred the US Constitution it would then be a simple matter to start confronting this in the courts."

Military tribunals are legal for the actions of every American military warrior, hence the UCMJ and courts martial. Likewise, such tribunals are legal for every foreign warrior who finds himself at the wrong end of an American rifle.