Military Commissions Act of 2006 Not Lawfully Passed!

UPDATE: H.R. 6166: Military Commissions Act of 2006
Military Commission Act Not Lawfully Passed

President’s Inaction Equals ‘Pocket Veto’
by Pat Shannan

Talk show host Alex Jones’ brief interview last week with an unknown caller has sent constitutionists and legal researchers scurrying for the law books.

“The Military Commission Act is not law!” the man barked. “The ‘pocket veto’ clause of the constitution has already nullified it.”

He then pointed out to the national radio audience exactly what the part about “pocket veto” in Article One, Section 7 of the U. S. Constitution means. Indeed, it appears that President Bush’s signing of the infamous “6166,” which in effect eliminates the 4th Amendment protection of citizens in their homes and a whole lot more, is moot. He was too late.

Now Jones and many others are wondering, who in an official capacity is going to point this out and enforce it?

Here is what the law says and what happens when a sitting president sticks a bill passed by congress into his pocket instead of signing it and sending it back:

A Pocket Veto occurs when the President fails to sign a bill within the 10 days allowed by the Constitution.

Congress must be in adjournment in order for a pocket veto to take effect.

If Congress is in session and the president fails to sign the bill, it becomes law without his signature.

Now to the current specifics.

From the U.S. Constitution Article 1, Section 7: “…If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevents its Return, in which Case it shall not be a Law.”

Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden. A pocket veto is a legislative maneuver in American federal lawmaking. The U.S. Constitution requires the President to sign or veto any legislation placed on his desk within ten days (not including Sundays). If he does not, then it becomes law by default. The one exception to this rule is if Congress adjourns before the ten days are up. In such a case, the bill does not become law; it is effectively, if not actually, vetoed. Ignoring legislation, or “putting a bill in one’s pocket” until Congress adjourns is thus called a pocket veto.

Congress passed 6166 on September 29th, presented it to the President on October 10th, and adjourned on October 13th. Bush signed it on October 17th, the week after Congress had adjourned, thereby rendering it “vetoed” by constitutional standards.

On September 6, 2006, President Bush asked Congress to pass the Military Commission Act of 2006. This Act – among other things – sought to re-define U.S. obligations under Common Article 3 of the Geneva Conventions, international treaties signed by every country in the world. Common Article 3 places an absolute prohibition on inhumane treatment of detainees during an armed conflict.

Specifically, the President wanted Congress to replace the absolute prohibition on inhumane treatment of Common Article 3 with a “flexible” standard, which would assess on a case-by-case basis whether particular conduct would amount to cruel, inhuman or degrading treatment. Human Rights First criticized the Administration’s proposal for adding ambiguity to an otherwise clear standard of Common Article 3, and would open the door to more Abu Ghraib-style abuses.

In response to the administration’s proposal, more than 45 retired senior military leaders wrote to members of the U.S. Senate expressing their opposition to redefining Common Article 3 on the grounds that it would compromise the safety of U.S. Service men and women. They were joined by Former Secretary of State Colin Powell and former U.S. Chairmen of the Joint Chiefs of Staff John Vessey, Hugh Shelton, and William Crowe, who also sent letters expressing their opposition to redefining Common Article 3.

Spearheaded by Republican Senators John McCain, John Warner, and Lindsey Graham, the Senate Armed Services Committee passed an alternative bill, sponsored by McCain, Warner, and Graham, that preserves Common Article 3. The Administration then agreed to negotiate with the key Senators, and a compromise was reached on September 21, which preserved the meaning and requirements of Common Article 3. Human Rights First welcomed this aspect of the compromise. Human Rights First opposed the final version of the Military Commissions Act, however, because it contained a number of provisions that raised serious concerns about compliance with the Geneva Conventions and with fundamental fair trial and due process principles. Among the most troubling aspects of the Military Commissions Act are provisions that purport to:

Grant unprecedented and unchecked authority to the Executive Branch to label as “unlawful enemy combatants”, and possibly to detain indefinitely, an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States
Deny independent judicial review, through habeas, of detentions of U.S. legal permanent residents and non-citizens
Limit the sources of law to which the courts may look and the scope of review on appeal
Narrow the scope of the War Crimes Act and seek to eliminate accountability for past violations of the law by the president and his administration.
Permit evidence obtained through coercion to be used in the military commission proceedings, with certain limitations.
Permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence.
Restrict full disclosure to the accused of exculpatory evidence
Give the Secretary of Defense authority to deviate from time-tested military justice standards for fair trials
Courts have never fully clarified when an adjournment by Congress would “prevent” the President from returning a vetoed bill. Some Presidents have interpreted the Constitution to restrict the pocket veto to the adjournment sine die of Congress at the end of the second session of the two-year Congressional term, while others interpreted it to allow intersession and intrasession pocket vetoes. In 1929, the United States Supreme Court ruled that a bill had to be returned to the chamber while it is in session and capable of work. A three-day recess of the Senate was considered a short enough time that the Senate could still act with “reasonable promptitude” on the veto. However, a five-month adjournment would be a long enough period to enable a pocket veto. Within those constraints, there still exists some ambiguity; Presidents have been reluctant to pursue disputed pocket vetoes to the Supreme Court for fear of an adverse ruling that would serve as a precedent in future cases[1].

For matters regarding the authority of the federal government, the place to start the analysis is with the United States Code. In 1 U.S.C. § 106a, we find the following:

Section 106a. Promulgation of laws

Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President, or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President; and whenever a bill, order, resolution, or vote is returned by the President with his objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both Houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Archivist of the United States from the President of the Senate, or Speaker of the House of Representatives in whichsoever House it shall last have been so approved, and he shall carefully preserve the originals.

Attorney and constitutional expert Harmon Taylor of Dallas, Texas harbors some consternation about the federal courts disregarding the constitution in recent years and ruling on federal statutes and court precedent.He points out, “This language is curiously silent regarding the “10-day Rule” set forth in Art. I, § 7, cl. 2. It is also noticeably silent about adjournment and any effect that adjournment may have on the “’10-day Rule.’

”Therefore, the next source to check is judicial construction, and the best starting place for that is with Supreme Court opinions. While Clinton v. City of New York, 524 U.S. 417 (1998), specifically addresses and thwarts executive law-making efforts via the so-called “Line Item Veto,” and, so, is not directly on point with our current question, it’s very helpful on the applicability of Art. I, § 7, cl. 2, generally, thus, the “10-day Rule,” in particular. The Court cites the law-making procedure in full in n.28. Clinton, 524 U.S. at 438-39 n.28. Even more importantly, the Court identifies that the “veto” power being analyzed is read in terms of the whole context. This is the point raised by n.29.

Applying that to the present circumstance, it’s difficult to picture how the Supreme Court would read the whole of Art. I, § 7, cl. 2 for purposes of “veto” analysis but then read only part of it for purposes of a question under the “10-day Rule.” So, where all of Art. I, § 7, cl. 2 is material, then both the “10-day Rule” and “adjournment” are material procedural facts in determining whether an act by the “congress” and presented to the “president” actually produced federal law.”

Taylor also pointed out to us that a separate new question arises as to whether the congress may enact legislation inconsistent with the Geneva Conventions to which the federal government is a signatory. In the recent case of Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749 (2006), the Supreme Court clearly identified several variances between the “military commission” process being utilized by the present administration and the trial process contemplated by the Geneva Convention. Should it turn out that the most recent legislation implements that same, or a very similar, “military commission” trial process, already characterized by the Court as “illegal,” then the question arises as to whether legislation that strays from the Geneva Convention standards is federal law.

“The answer may seem intuitively obvious,” Taylor said, “but this one will take some additional study and reflection. Your conclusions are correct, constitutionally speaking,” he said, referring to President Bush’s delayed signing of the bill, “but you can bet that the Supreme Court, if it comes to that, will do everything it can to avoid making a constitutionally based decision.”

Indeed. Even as the most amateurish constitutional historians realize, we have not been able to keep the republic Ben Franklin feared we could not 220 years ago. Now it seems we may have to be concerned with that piece of philosophy from Mao — the one about “Power coming out of the barrel of a gun.”