Update: Watch Yourselves ~ MCA Expands Definition of "Enemy Combatant"

An opinion piece in that heretic liberal 'zine, The Nation, with its proud tradition of boldly poking holes in the hot-air noise balloons of Neocons, yesterday ran this article (title bar) comparing Bushco's new torture, mayhem & indefinite detention terrorist-control legislation to what this country went through in WWII with the Japanese internment camps. Upshot: we've learned nothing from that experience. (*surprise*)

The piece, titled "Bill of Rights, RIP" also points out that Bush's new terror toy, besides paving the way for political show trials, also contains vague language as to who can be designated an "enemy combatant" & why.

"Anyone anywhere in the world at any time may be summarily classified an 'unlawful enemy combatant' by the executive branch, seized and detained indefinitely in military prisons.

"As Bruce Ackerman points out in the LA Times, the definition of 'unlawful enemy combatant' includes those who 'purposefully and materially supported hostilities against the United States' (by say, writing a check to a Middle East charity) and may extend to US citizens."

Might that include liberal bloggers who dare criticize the arrogant shenanigans of members of Bushco? Does deflating the Bushco fantasy of worldwide omnipotence provide "aide & comfort" to the enemy?

There appears to be good news if so: "Thanks to the Supreme Court's decision in Hamdi v. Rumsfeld, US citizens at least appear to retain habeas corpus rights, a foundation of Western jurisprudence."

The article adds, "Foreign nationals do not; the Act explicitly denies them the writ of habeas corpus (the right to be charged and tried and the right to appeal any convictions in a court of law)."

Update: 10/3

Some drive-by wingnut posted a rude & nasty comment (pissed me off, so I rejected it, besides referring to a non-existent "intelligent discussion" of the issue on another site.) The Military Commissions Act is far too new for anybody to say definitively how it will be applied, but this much is clear. U.S. citizens can be designated enemy combatants, & for what we just don't know until George's henchmen start showing up on doorsteps & dragging us away, which was my point, Mr. Wingnut. The definition is intentionally broad & it's not at all clear how it will be interpreted. And guess who will be providing that interpretation. More to the point, does anybody in their right minds trust them to do that?

A detailed discussion from the Balkinization website appears below, if, Mr. Wingnut, you care to bother reading it. (BTW, the absolute worst thing about this bill is that it purports to be the final word about George's interpretation of the Geneva Conventions--& further attempts to deny any court review of that interpretation.)

If you have something specific you want to address further Wingnut, fine, but if not, fuck off.
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Friday, September 29, 2006

Does the Military Commissions Act apply to citizens?
JB

Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward.
(1) Yes, a few parts of the MCA do apply to citizens; and
(2) the MCA is probably unconstitutional in many of its applications to citizens; and
(3) some constitutional applications of the MCA to citizens are deeply troubling.

A U.S. citizen may be an unlawful enemy combatant under section 948a.

Section 948a(1) defines an unlawful enemy combatant as

"(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens.

Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a.

Hamdi v. Rumsfeld states that the President had authority to detain enemy combatants according to the laws of war based on a fairly narrow definition of the term "enemy combatant":
for purposes of this case, the "enemy combatant" that [the government] is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized."

The MCA greatly expands the definition of enemy combatants, because it greatly expands the definition of "unlawful enemy combatants." If the government may detain any enemy combatants, a fortiori it may detain unlawful ones. The new definition is fuzzy: it includes citizens who "materially support" hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.

Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of "material support" in section 948(1)(i) would violate the Due Process Clause or the First Amendment.

But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is.

The problem with 948a(1) is that it may place Congress's stamp of approval on a definition of "unlawful enemy combatant" that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply.

One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.

However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo?

As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.
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