Military Omissions Act

There are very serious problems with the recent HR 6166. The concerns with the bill authorizing torture or suspending Habeas Corpus, or trashing the Federal Rules of Evidence, or not permitting the accused to confront accusers has been addressed ad nauseam. That's not what I'm addressing here. No, if those unsettled issues don't convince you that there are problems with this bill; If you can accept a law that introduces that kind of uncertainty into the standard of treatment of the (presumed innocent) accused in the smoldering crater that was once our American justice system and still sleep at night, then I submit there is nothing substantive in the bill that I can present that will give you pause.

That still leaves legal issues with the bill itself to be considered. The problem I want to draw attention to is the simple fact that this bill, advertised as giving US agents the legal clarity needed to be sure that they were compliant with the law, does nothing of the kind. It is easily one of the most cryptic, obfuscatory, convoluted pieces of legislation I have ever read… In nearly every instance in the bill where a bright-line rule would be helpful, the drafters dropped the ball in one of two ways.

The first common way it fails to provide a bright-line was by appeal to authority. The bill frequently says things having the form "X is the rule UNLESS a military judge finds otherwise". HR 6166 Sec 948(r)(c), Sec 948(r)(d), Sec 949(a)(2)(A), Sec 949(a)(2)(D), Sec 949(d)(f)(2)(A), etc. http://www.govtrack.us/congress/billtext.xpd?bill=h109-6166
These appeals to authority rob the bill of certainty since it leaves the reading party wondering how a judge would rule. That is, those nice civilians interrogators can't really tell whether keeping a man naked in a 48" by 48" by 20" room at 59 degrees for 23 hours a day is legal or not based on this bill. They risk being second guessed by a judge. This is exactly what the bill was supposed to prevent. A second and arguable more important problem is that such appeal to authority creates a "rule by men" in substitute to the time honored "rule of law". The accused and the accusers both really should be able to point to some law and say, "See! This supports my position." This bill undermines the rule of law.

The other common failure is the way the bill sends the reader on a wild goose chase through antecedant laws and treaties to find out what, if anything, it is trying to say. There are no answers in this spaghetti-code bill, only cross-references. For sake of illustration, consider the most important question this bill was supposed to answer, "what treatment of persons to obtain a statement rises to an unacceptable level of coercion?" Well, looking at HR 6166 Section 948r(c) and (d), the answer depends on (I'm not making this up) whether the statement in question was obtained before, on, or after December 30, 2005. http://www.govtrack.us/congress/billtext.xpd?bill=h109-6166
If obtained on or after December 30, 2005, HR 6166 references the definition of "cruel, inhuman, or degrading treatment " from section 1003 of the Detainee Treatment Act of 2005. Section 1003 of the Detainee Treatment Act of 2005 describes "cruel, inhuman, or degrading treatment " in section (d). http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php
What does that say? The definition refers the reader to the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. http://www.ohchr.org/english/countries/ratification/9.htm
These cross-references just keep going…

This bill is not just poor in its substance, it is drafted badly in a way which raises more questions than it answers.