The 6th & 7th Amendment
The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Military Commissions Act cancels out the right to a speedy and public trial, with indefinite detention and secret proceedings. Instead of an impartial jury of his peers, the accused is brought before a military tribunal in a foreign land (usually Guantanamo Bay, Cuba US Naval Base), with a military judge to decide the basis of the accusation without the accused right to call witnesses, see the evidence against them, or challenge it. This act turns the Sixth Amendment on its head, and shifts the burden of proof from the state having to prove it’s case, to the witness having to prove their innocence, without being given any tools to do so. Already people like John Walker Lindh, an American citizen have been denied this basic right to a speedy and public trial in the United States because of the government’s preference to strip their rights, based on accusations that cannot or will not be tried in a public court. Instead of obtaining a resolution in matters such as these, individuals are held indefinitely and rendered to foreign countries where they are repeatedly tortured, such as the case with Maher Arar where he was detained at a Canadian airport, sent to Jordan, then Syria, where he was imprisoned, interrogated, tortured and sent back to Canada only after signing a statement that he was a member of Al Qaeda. After suing the Canadian government for their role in his abduction Arar won a 10.5 million dollar judgment and a formal apology from Canadian Prime Minister, Stephen Harper.
To this day people captured in Pakistan and Afghanistan, often people who are even rounded up from rival tribes and given to coalition forces for monetary rewards, are rendered to secret locations in foreign countries where they are systematically tortured, and released once they finally confess (falsely) to being members of a terrorist organization.
This approach also eliminates the Seventh Amendment which states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” In fact more often than not the trend of plea barging and accepting a conviction with a reduced sentence directly attacks the purpose of jury trials altogether. In these cases, both attorneys and judges who are presiding over the case, make a concerted effort to subvert and eliminate the constitutional right to a jury trial in the name of expediency and personal career and political goals. In fact The Re-Examination Clause of the Seventh Amendment states: “In suits at common law, … no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” This clause forbids any court from reexamining or overturning any factual determinations made by a jury, unless the factual determinations are clearly erroneous.” Supposedly the judge cannot even overturn the jury’s verdict unless they can show that they are in error over the evidence presented in the case. The judge has even less power than we are led to believe he does in the first place. ” As common law provided, the judge could set aside (or nullify) a jury verdict when the judge decided that the verdict was contrary to the evidence or the law. Common law precluded the judge from himself entering a verdict; a new trial, with a new jury, was the only course permissible.”