ShadowMonkey - New Executive Order establishing trials by military commissions

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New Executive Order establishing trials by military commissions

Tuesday, 27 February 2007

Lost in the news of celebrity deaths, child custodies and Oscar costumes of the past few weeks was a new formal Executive Order by President Bush establishing military commissions for trials of 'alien unlawful enemy combatants.'

Of interest in this Order is the act of specifically defining the word "alien." This is not done by referring to applicable statutory defininition, as was done in the Order for "unlawful enemy combatant," but by taking the time to define the word fully -- in this case as "a person who is not a citizen of the United States."

What we're wondering about here at ShadowMonkey is this: if, as so many defenders of the Military Commission Act say, the law does not permit the use of military commissions to try citizens or legal residents of the U.S., why was it necessary to specify in this Order that such commissions established by this Order would apply only to aliens?

Why not just refer to the statute, which supposedly does not apply to citizens or legal residents? It's done that way in the Order for ""unlawful enemy combatant." Why not? ...could it be that the Military Commissions Act does not rule out its use for trying citizens or legal residents....?

The President's Executive Order of February 14, 2007:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Military Commissions Act of 2006 (Public Law 109‑366), the Authorization for Use of Military Force (Public Law 107-40), and section 948b(b) of title 10, United States Code, it is hereby ordered as follows:

Section 1. Establishment of Military Commissions. There are hereby established military commissions to try alien unlawful enemy combatants for offenses triable by military commission as provided in chapter 47A of title 10.

Sec. 2. Definitions. As used in this order:

(a) "unlawful enemy combatant" has the meaning provided for that term in section 948a(1) of title 10; and

(b) "alien" means a person who is not a citizen of the United States.

Sec. 3. Supersedure. This order supersedes any provision of the President's Military Order of November 13, 2001 (66 Fed. Reg. 57,833), that relates to trial by military commission, specifically including:

(a) section 4 of the Military Order; and

(b) any requirement in section 2 of the Military Order, as it relates to trial by military commission, for a determination of:

(i) reason to believe specified matters; or

(ii) the interest of the United States.

Sec. 4. General Provisions. (a) This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.

(b) The heads of executive departments and agencies shall provide such information and assistance to the Secretary of Defense as may be necessary to implement this order and chapter 47A of title 10.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.