No, the UCMJ also applies to those subject to a tribunal. Tribunals are normally reserved to those who violate the law of land warfare and who are not US Servicemen.
That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials. (Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?
No, the EO specifically tasks the SecDef to develop post trial procedures (that includes appeals). That said, you read too much into the EO. The EO does not forbid appeals to courts.
I'm reading too much?
I think you are reading too little.
Section 4(b)(8) puts final review of any conviction before the President.
Section 7(b)(2) specifically states there will be no recourse to the courts.
Once again, no. The EO does not address habeas corpus. The SecDef is directed to develop rules and regulations for the conduct of the tribunals. This is properly addressed in those rules and regulations.
Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief.
Section 7(b)(2) specifially states no accused shall ever be allowed to petition any court for relief.
"The UCMJ requires unanimity for a death sentence. The Bush EO requires only 2/3. Sound "inconsistent"? For once, you're right. I suspect the EO was hurriedly drafted and no one noticed the distinction. I suspect the EO will be changed.
I WROTE:
"The UCMJ requires a formal indictment and the right to cross-examine the witnesses. The Bush EO requires only the president's signature. Sound "inconsistent"?"
And again, no. The SecDef is tasked to develope the rules and regulations governing the tribunals specifically including pretrial procedures. The procedures for an indictment will properly be included in those rules and regulations.
You just don't get it....
Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak.
The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b)).
I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution.
You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING.
But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))
"That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials."
I disagree based upon the instruction I've received on the UCMJ in a variety of military courses, most recently Command General Staff College.
"(Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?"
This section defines a class of persons to be treated as "war criminals".
"Section 4(b)(8) puts final review of any conviction before the President."
The convening authority reviews the outcome of a courts martial or tribunal. This EO states that Bush will be the convening authority. Appeal may take place during the review process, but it includes much more, the US Court of Military Appeals and USSC for example.
"Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief."
And a military tribunal may not function as an Article III court? Where do military personnel file habeas corpus?
"Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak."
The charging official is the President.
"The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b))."
And, how does this differ from other criminal cases? You have an indictment, the Presidential order, then an arrest, detention, and trial, in that order.
" I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution."
Are you claiming that the UCMJ is unconstitutional. Courts martial (trials) can take place "any place" too.
"You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING."
How then does the Executive Branch administer the UCMJ? Doesn't that require judging? Aren't the military judges members of the Executive Branch?
"But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))"
But, even more fundamentally, "836. ART 36. PRESIDENT MAY PRESCRIBE RULES (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."
You will note the part about "so far as he considers practicable". (Section 1(f)) is nothing more than a "finding" of the extent this is practicable.