"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.
Military tribunals are not Article III judges. They are cetainly judges, but their authoirty comes from the EXECUTIVE branch (Article II) and not the JUDICIAL branch (Atricle III).
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.