Balkinization  

Wednesday, September 27, 2006

Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely

Marty Lederman

Yesterday I explained that the definition of "unlawful enemy combatant" (UEC) in the latest draft of the detainee bill was so ridiculously broad and open-ended that it could not possibly be intended to establish the authority of the Executive to militarily detain all persons so defined.

But it appears I underestimated the gall and recklessness of the Administration and Congress, because there seems to be a fairly widespread understanding that the definition would do just that. Even Human Rights First seems to agree that "unlawful enemy combatants" would be subject to indefinite detention.

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any "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)." And that subsection is, indeed, broad, and fairly indeterminate, depending on how "materially supported hostilities" is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any 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."

Read literally, this means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to "hostilities" at all.

This definition is not limited to Al Qaeda and the Taliban. It's not limited to aliens -- it covers U.S. citizens as well. It's not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it's not even limited to a time of war or armed conflict; it could apply in peacetime.

Therefore if, as everyone is assuming, this definition does establish who may be detained by the military outside the civilian justice system, it would quite literally give the Secretary of Defense the statutory authority to detain just about anyone he wants, indefinitely. And if that's the case, then the habeas-stripping provision would really be the least of it, because even with all the due process and habeas protections in the world, it would be almost impossible to challenge the grounds on which someone is detained if the Executive itself can establish what the permissible grounds for detention are. [NOTE: I should clarify that what I wrote yesterday remains true: The bill itself does not state, in so many words, that all "unlawful enemy combatants" may be detained until the end of hostiltiies. Indeed, it doesn't offer much of a reason at all for defining "unlawful enemy combatant." Thus, the bill could -- and perhaps should -- be construed not to establish any detention authority. But many in Washington this week fear that the Administration will read the new definition to implicitly establish a new detention authority. If -- but only if -- the bill did so, it would be an indefensible delegation to the Executive on a vital question of suppressing individual liberty. That's the (conditional) thrust of this post.]

In theory, there would be some limits on this detention power, but they would come from outside the statute itself. Three possibilities come immediately to mind.

First, presumably a detention would have to comply with the laws of war. There's a basic presumption of statutory construction that Congress does not intend for the U.S. to violate customary international law (the Charming Betsy canon); and that presumption would be especially stong here, seeing as how the principal purpose of the bill as a whole is to make provisions for punishing violations of the laws of war. As the Court suggested in Hamdan, it would not make much sense to assume that Congress intends to authorize violations of the laws of war via the very statute that establishes the terms on which we will punish others for violating those laws. (Moreover, there's actually a serious question whether Congress has the constitutional power to pass a statute that violates the laws of war. The idea that a statute can supersede the laws of war might now be commonplace, but it's actually a fairly recent notion. For most of U.S. history it was assumed by all three branches of the federal government that the laws of war delimited the constitutional war powers of Congress and the Executive -- and the Supreme Court has never said otherwise. In any event, even if that argument would fall on deaf ears in the modern Court, it provides yet another very strong reason why this new bill should not be construed to authorize detention (or any other conduct) in violation of the laws of war.)

Second, the Constitution would set some limits on who could be detained, at least with respect to U.S. citizens and persons aliens detained domestically (and possibly even with respect to aliens detained overseas, depending on whether the Court holds that they have Fifth Amendment protections -- a very important and unresolved pending question).

Finally, one might argue that the definition in this bill cannot operate of its own force, but instead must be read in pari materia with a distinct, separate authorization to use military force, such as those Congress enacted authorizing the use of necessary and proper force against Al Qaeda and the Taliban, and in Iraq -- so that the only UECs who may be detained are those fairly encompassed by the AUMF in force at a particular time (in this case, only persons sufficiently associated with the groups and nations responsible for the 9/11 attacks).

The problem with all three of these potential limiting principles, however, is that they would be applied in the first instance by the Bush Administration (which has demonstrated an eagerness to (mis)read such limits exceedingly narrowly), and this bill would significantly restrict the ability of detainees -- especially aliens -- to seek effective review of such decisions.

* * * *

Choosing the most indefensible provision in this bill is a tall order -- there are many worthy candidates. But a provision that would grant DoD virtually unlimited discretion to detain "unlawful enemy combatants," as defined by Donald Rumsfeld himself, would be an awfully formidable candidate for that dubious honor.

Comments:

I agree with the perception of excessive porosity in the language defining prospective detainees, and this likely is a result of hasty composition, even following a four month process of review since the Hamdan decision.

It is worth re-reading the argument in Hamdan exchange between Justice Stevens and the Solicitor General where laughter erupts as the SG declares the writ of habeas is both suspended and not suspended at page 56; and farther at page 77 this time with Justice Scalia leading the SG through the uniquely vulnerable detainee condition, where the Justice intercepts a line of questioning by another justice, Kennedy.

I think there is so much due process caselaw here that the imprecision in the UEC-ii definition which opens US citizens to incommunicado detainment by the secretary of Defense would not stand, even given the brash court stripping provisos.

When B. Berenson made his apologesis before the Senate Judiciary Committee this Monday, once again the senators listened to rhetoric chastizing them for letting an inappropriately politicized supreme court in the opinion in Hamdan ignore clear mandates in DTA.

I would hope there is more considerate evaluation in the senate in the current redrafting process, and that the senate explicitly realizes that in addition to cleaning up the imperfections and contradictions in the president's proposed law, there is a wider context to which the supreme court also alluded in its final opinion in Hamdan.

First there needed to be renewed colloquy between executive and legislature. Then the supreme court would fulfill its responsibility to advise upon what finally passed remade law would require; and the supreme court would look at whether the new law is suggesting such fundamental changes to our legal environment that amendment to the constitution would be necessary to proceed.

Even in its ungainly form as now existing, if the law passes in the senate, besides US citizens being affected (a totally unacceptable outcome) by the detainment provisions, I could foresee the diplomat community having deep concern that a new environment would develop, fostered by the impacts of the commissions and their use of torture permissively.

Hopefully a supermajority of the senate will vote against this law, perhaps separating it into smaller more manageable elements rather than its current hundred page bulk; the polls are saying a supermajority of the public is against the torture part of the law. But the habeas segments are equally worrisome. I do not think the SG, or the 'compromising' three leading senators either, should both have the writ and do away with it; as Justice Stevens replied to the SG, "Well, it can't be both."

I was reading the Chavez v Martinez case again; 01-1444; I expect that if the new law is presented in some form for assessment of its constitutionality at Scotus, there will be one vote to let it stand as is, Thomas'; and, given the direction of the other Justice's intervention in the 'uniquely vulnerable detainee' discussion loc. cit., probably two votes.
 

Thank you for the analysis. The more this travesty of a bill is covered, the better. Let's continue to put the spotlight on those elected officials who are either pushing for (Republicas), or enabling (Democrats) the destruction of our freedoms.
 

Bizarro Conservatism and Its Discontents, by Justin Raimondo


excerpt [emphasis added]:

"There was a time . . . when Americans feared the accumulation of power, especially when it accrued to the federal government in Washington: conservatives of the Goldwater stripe (and, further back, the followers of Sen. Robert A. Taft), were especially vigilant against this danger. . . Both Left and Right were joined at the root by the American libertarian consensus; a reflexive distrust of government power rooted in history and reinforced by a rebellious temperament embedded in the American consciousness.

No more: today, the "conservatives" on the Fox "News" channel and the Rush Limbaugh-radio talk show circuit are worshippers at the altar of State Power. No expansion of governmental authority is too vast, too broad, too brazenly contrary to the spirit and letter of the Constitution to evade their enthusiastic endorsement. . .

The ultimate expansion of the "unlawful combatant" definition to include any and all opposition to the War Party, whether military or political, is only a matter of time, and not much time at that. This administration and its allies have long maintained that their critics are "objectively" aiding the terrorist enemy. If Iraq is the main theater of our war on terrorism, then criticism of the war effort, such as organizing an antiwar demonstration, amounts to "material support" for "hostilities against the United States." . . .

For once, I agree with Andrew Sullivan:

"Whatever else this is, it is not a constitutional democracy. It is a thinly-veiled military dictatorship, subject to only one control: the will of the Great Decider. And the war that justifies this astonishing attack on American liberty is permanent, without end. "

I might add, however, that Sullivan is only getting what he asked for. . .

The program of the War Party ; perpetual war and the creation of an American empire; had to mean the overthrow of our constitutional republic, and the rise of . . . something else. Something that has been, so far, alien to America, but is now, sadly, a looming possibility: a dictatorship "legally" empowered by "emergency" measures, such as the one presently before the Senate [.pdf]."
 

Professor Lederman:

[T]he really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any 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."

This latter definition simply confirms the CiC's Article II power to hold status hearings to determine whether a capture is an unlawful enemy combatant.

It is quite simply wrong to claim that the executive can call anyone they want an enemy combatant under this statute.

This legislation defines a lawful enemy combatant in detail.

By definition, an enemy combatant of any type cannot be a civilian and the detention must be during wartime for the person to be a combatant.

Thus, under process of elimination under this legislation, an unlawful combatant is a combatant, not a civilian, who does not fall under the definition of lawful combatant.

In theory, there would be some limits on this detention power, but they would come from outside the statute itself. Three possibilities come immediately to mind.

First, presumably a detention would have to comply with the laws of war. There's a basic presumption of statutory construction that Congress does not intend for the U.S. to violate customary international law (the Charming Betsy canon); and that presumption would be especially stong here, seeing as how the principal purpose of the bill as a whole is to make provisions for punishing violations of the laws of war.


This legislation expressly establishes what the laws of war are under US law as they apply to Captures. Article I of the Constitution makes Congress the final power to set rules for Captures. Treaties are subordinate to the Constitution.

Sections 948b(d) & (f) of this legislation expressly states that military commissions as formed under this legislation satisfy the requirements of Article 3 of the Geneva Conventions and that unlawful enemy combatants may not invoke the Geneva Conventions for rights not established in this legislation.

As to interrogation of unlawful enemy combatants, Section 6(a)(2) of the legislation states that this section fully satisfies US obligations under Article 3.

Second, the Constitution would set some limits on who could be detained, at least with respect to U.S. citizens and persons aliens detained domestically (and possibly even with respect to aliens detained overseas, depending on whether the Court holds that they have Fifth Amendment protections -- a very important and unresolved pending question).

This is yet another good argument against your slightly overwrought claim that Congress is somehow giving the President the power to detain you and I for any reason he sees fit.

Finally, one might argue that the definition in this bill cannot operate of its own force, but instead must be read in pari materia with a distinct, separate authorization to use military force...

When the enemy declares war and attacks you as al Qaeda and its allies did starting in the 90s, you are in fact at war no matter what Congress enacts. Those who war against you are by definition enemy combatants. There have been literally dozens of small and not so small wars in which Congress has not formally declared war or its equivalent through an AUMF in which we have captured prisoners.
 

Tonal Crow:

To start, you and Professor Lederman are focusing only on one part of a larger piece of legislation which must be read in harmony with the rest of the legislation.

As I cited above, the legislation defines a lawful enemy combatant. If a detainee falls under that definition, he is obviously not an unlawful enemy combatant.

Furthermore, words have commonly accepted meanings even if undefined by Congress.

A combatant is by definition a person who wages war either as front line fighter or personnel supporting and supplying those fighters.

A combatant is the polar opposite of a noncombatant civilian bystander.

An enemy combatant is someone who is warring against us or our allies.

Congress meant any person, they would have used the term person.
 

Anderson:

Jose Padilla was an enemy combatant who was also a US citizen.

That leaves an interesting hybrid situation which has not been fully resolved.

During the Civil War, US citizens were also enemy combatants and imprisoned without criminal trials. However, we are not in a civil war and are instead dealing with traitors fighting for a foreign enemy.

4th Cir held that Padilla had limited rights and could be detained as an enemy combatant without being charged with a crime.

I personally subscribe to Scalia's holding in another enemy combatant case that US citizens have full rights under the Constitution and should be tried for treason or other applicable crimes.

Perhaps seeing the writing on the wall if the Padilla appeal went to the Supremes, the executive moved Padilla to civilian court and mooted the issue for now.

This legislation is largely irrelevant to Padilla's case. Either citizen enemy combatants have constitutional rights which trump this legislation or they do not.
 

Anderson:

I make a very fundamental distinction between US citizen and foreign enemy combatants.

Unlawful foreign enemy combatants have never been extended constitutional rights of citizen criminal defendants, nor should they now.

The Bush military commission system and the enhanced rights under the proposed legislation are far more due process than unlawful foreign enemy combatants have historically received.

With the exception of our voluntary extension of Geneva POW rights to Viet Cong unlawful combatants fighting in civilian clothing, due process has historically been a cursory battlefield hearing to determine if the person in civilian clothing or our own uniforms was a combatant followed by a summary execution if he was. During the Battle of the Bulge, our military simply shot captured SS dressed in our clothing. There was no trial.

Granting unlawful enemy combatants fighting in civilian clothing amongst and behind civilian non combatants the same rights as those who fight in uniform and do not unnecessarily endanger civilians simply rewards war crimes which endanger civilians.
 

Take a look at Section 948r(c). If you compare the two parts, it plainly implies that self-incriminating statements obtained prior to enactment of the Detainee Treatment Act, by interrogation methods that violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments, may be allowed into evidence.
 

Tonal Crow:

My friend, this bill does not define unlawful enemy combatants as generic "persons." Rather, it expressly defines them as "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."

Words have meanings.
 

Well, I did at least what I could for now, and left voicemail messages for both my senators pointing out these difficulties with the bill and urging them not to pass something equivalent to the House version, but instead to come up with something that will better protect some kind of basic legal standards.
 

I live in Colorado. Both my Donkey senator Salazar and my Elephant senator Allard will vote for this bill if they expect to get reelected out here.

Nearly every Elephant in the House and every Donkey in anything like a close district voted for this bill.

I expect the same in the Senate.
 

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An "alien" according to Law.com is anybody who is not a citizen of the country. A classification of "enemy combatant", thanks to prior legislation, would replace a US Citizen's designation as a "Citizen" and therefore not only remove that person out from under the jurisdiction of the Constitution, but leave said person without any country to live in.
 

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وجود الموظفين المدربين بشكل صحيح يضمن أن أفضل شركه تنظيف بالرياض سوف تعطيك أفضل خدمة تنظيف متوفرة. ومن المهم أيضا التأكد من أن الموظفين وتدريبهم بشكل صحيح لخاصية معينة (مثل الأرضيات ومكاتب) يمكن عن طريق الخطأ خدشها إذا تم تنظيفها بشكل خاطئ، لذلك نعلم أن موظفي شركه تنظيف تم تدريبهم بشكل صحيح في التنظيف والتأكد من أن خدوش الهواة نتيجة للتنظيف بشكل غير صحيح لن يحدث.
أفضل شركه تنظيف شقق بالرياض كثيرة. ولكن ما يميزنا عن غيرنا هو جودة الخدمات لدينا وولائنا للعملاء حيث أن أهم شىء بالنسبة لنا هو راحة العملاء. نحن متاحون طوال الأسبوع لذلك لا تقلق إذا كانت هناك حالة طارئة
أفضل شركه تنظيف فلل بالرياض عادة ما تكون متاحة من الاثنين حتى السبت مع العمل نصف يوم في عطلة نهاية الأسبوع. ولكننا نعمل علي مدار الأسبوع.
تسربات المياه يمكن أن تحدث في أي وقت دون أي تحذير، وقد يكون الوقت متأخرا جدا قبل أن يعرف أحد في المنزل عنهم. للكشف عن مثل هذه التسريبات نحن نقدم أفضل شركه كشف تسربات المياه بالرياض حيث نقوم بإستخدام جهاز إلكتروني للكشف عن التسريبات و يتم وضعه في المكان الذيمن الممكن أن يحدث فيه تسرب.
من الخدمات الأساسية التى نقوم بتقديمها هي نقل وتخزين الأثاث فى السعودية وتنقسم الي أفضل شركه تخزين الأثاث بالرياض و إنشاء مسار واضح ودون عائق للأثاث الذي تحركه. تأكد من أن جميع الأطفال والحيوانات الأليفة بعيدين عن طريق الأذى قبل بدء التحرك والتواصل مع الآخرين الذين يساعدون و أنت تتحرك. أفضل شركه نقل اثاث بالرياض ، ومما لا شك فيه أن الجميع يبحث عن أفضل الطرق الخاصة بنقل الاثاث على اعلى درجة ممكنة من الأمان ؛ حتى لا تتعرض المنقولات لحدوث أى تلف أو ضرر.و يمكنك ايضا الاستعانو ب أفضل شركه نقل عفش بالرياض
هناك العديد من التساؤلات التى تدور فى ذهن كل منا حول مدى تأثير المبيدات الحشرية التى نستخدمها فى المنزل على الأطفال أو الحيوانات وماهى المواد السامة التى تحتوى عليها وتكون فتاكة بالنسبة للحشرات ، خدماتنا فى مجال مكافحة الحشرات عالية جداً حيث نقدم أفضل شركه مكافحة حشرات بالرياض.
القضاء على الفئران عن طريق المصيدة التى توضع للفأر ويوضع له فيها الطعام المحبب للفئران الذى تعشقه الفئران ومن هذه الاطعمة الجبن بكل أنواعها وخاصة الانواع الغالية منها مثل الرومى أو الريكفورد أو الشيدر ومن الاطعمة المحببة للفئران أيضا الطماطم المخلوطة بالدقيق أو شرائح الدجاج المخلية و نحن نقدم أفضل شركه مكافحة فئران بالرياض.

 

موقع العاب فلاش جديدة وحصرية ويتميز بالسهولة في التصفح ويحتوي علي باقة كبيرة من كل العاب الاولاد والبنات مثل العاب السيارات و العاب الطخ و العاب التلبيس ايضا يحتوي علي العاب السباقات والعاب السا وفروزين وباربي والعاب انا وكل الالعاب الشهيرة والجديدة والعاب اميرات ديزنيوهذة هية باقة من اشهر اقسام الالعاب والاكثر طلبا بين كل العاب الفلاش
العاب فلاش -
العاب فلاش برق -
العاب اطفال -
العاب بنات -
العاب اكشن -
العاب سيارات -
العاب بن تن -
العاب إلسا -
العاب بيبي هازل -
العاب تلبيس -
لعبة من سيربح المليون -
لعبة زوما -
لعبة الفراخ -
لعبة السمكة -
لعبة المزرعة السعيدة -
العاب بنات -
العاب اطفال -
رسائل حب
 

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