an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Apparently there are over 100 changes, many of them "technical." I haven't read it through it carefully yet, but I am informed that it would authorize and encourage even greater departures in the commissions procedures from court-martial practice, including further restrictions on a defendant's right to examine all of the evidence against him. Also, this version reportedly would make it more difficult to challenge any decision by the Secretary of Defense to depart from the statutory procedures for commissions.
Perhaps most alarmingly, the new version contains a much broader definition of "unlawful enemy combatant." The "compromise" bill from last week defined "unlawful enemy combatant" as "an individual engaged in hostilities against the United States who is not a law enemy combatant." The new bill would expand the definition to cover:
(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.
Thus, if a person purposefully and materially supports hostilities, he will be an unlawful combatant, even if he never engages in any hostilities himself. [NOTE: At least one of the Administration's supporters believes that the mere filing of a habeas petition is a form of "aggression against the United States." Presumably that is not the intent of the drafters, or else all those attorneys now representing military detainees would become "unlawful enemy combatants"!]
The second subsection is, perhaps, even more alarming: It appears to suggest that even if a detainee has not engaged in hostilities or supported hostilities, he will be deemed an unlawful combatant if the Department of Defense has said so! Note that this definition is not limited to aliens abroad. It applies to persons in the United States, and to citizens and aliens alike.
Some observers understandably fear that the the purpose or effect of this provision might be to give the Executive a statutory authority to militarily detain the category of persons deemed "unlawful enemy combatants." But the definition is so broad, and standardless, that it suggests it should not be read as such a detention authorization. (The bill does not expressly indicate that all persons defined here as "unlawful enemy combatants" may be militarily detained.) Otherwise, DoD's determination of status based on whatever standard it wished to apply would be determinative of the Executive's authority to detain. Even for these drafters, that sort of extreme carte blanche to the President to detain whoever he sees fit, without any statutory limit at all, seems highly unlikely.
* * * *
The "Thou shalt not invoke one's Geneva rights in court" provision has been moved from section 7 to section 5. The War Crimes Act amendments are now in section 6. And the habeas suspension is in the new section 7.
It is worth noting one thing about the breadth of the habeas-stripping provision, both in the new draft and in last week's version, that has thus far received inadequate attention in the public debate. That provision would eliminate the right to petition for habeas for all alleged alien enemy combatants, whether or not the detainee has been determined to be an "unlawful" combatant -- indeed, even if the detainee is deemed a lawful combatant (e.g., a POW) -- and no matter where they are detained, including in the United States.
The provision therefore would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings(and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress]has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").
If section 7 of the new draft legislation had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita. Thus, this habeas-stripping provision would be a much more dramatic repudiation of traditional, longstanding habeas rights than has been commonly acknowledged. Posted
by Marty Lederman [link]
Not to put to fine a point on it, but isn't the practical effect of the latest round of changes to give the President the unlimited, unreviewable power to detain anyone indefinitely, for any reason or for no reason?
Some observers understandably fear that the the purpose or effect of this provision might be to give the Executive a statutory authority to militarily detain the category of persons deemed "unlawful enemy combatants." But the definition is so broad, and standardless, that it suggests it should not be read as such a detention authorization.
The legislation defines lawful enemy combatants in detail and requires that they be tried under the UCMJ. Additionally, the term combatant by definition excludes unaffiliated civilians. Thus, the legislation defines unlawful enemy combatants by process of elimination as all combatants who are not lawful just like the original definition.
The only real change here is the clarification that the enemy combatant does not have to be a front line fighter and may also be service or support personnel. This is perfectly reasonable. 2/3 of our military are service and support.
The revised text is before the Senate in the form of Frist's S.Amdt. 5036, with the actual text at http://thomas.loc.gov/cgi-bin/query/R?r109:FLD001:S60076 The amendment and Military Commissions Act of 2006 is being handled in the context of H.R.6061 - The Secure Fence Act. Senator Specter has until 2:30 to file 1st degree amendments out of the Judiciary Committee - well, all Senators have until 2:30 PM to do so. Amazing. Text formally filed Monday evening, concurrently with a cloture motion, and review and proposing of amendment is to take place within a period of about 20 hours.
I was curious, since it has come up a lot of times, can Congress suspend the writ of habeas corpus w/o an insurrection or invasion, or a least a finding of necessity for public safety? The Constitution seems to say no. And then, has the clause been construed only to limit Congress' ability to suspend the writ to citizens? All of the talk coming from the news and Congress seems to skip over the limits on the suspension of the writ in the Constitution itself. I vaguely remember Qurin and McCardle, but wasn't Qurirn a post-conviction challege? I seem to recall old english law allowed forigners to invoke the great writ challenging detention prior to a trial and conviction. Am I off my rocker - and do you have any suggestions on law review articles or cases that address these issues?
Quoting Bart DePalma: ------ The legislation defines lawful enemy combatants in detail and requires that they be tried under the UCMJ. Additionally, the term combatant by definition excludes unaffiliated civilians. Thus, the legislation defines unlawful enemy combatants by process of elimination as all combatants who are not lawful just like the original definition. ------
This is unsupported by the legislation. The definitions at http://thomas.loc.gov/cgi-bin/query/F?r109:1:./temp/~r1098ClbzG:e0: do not exclude civilians from the definition of "unlawful enemy combatant." Instead, s.948a(1)(A) defines "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...; or (ii) a person who...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."
In other words, an "unlawful enemy combatant" includes anyone who is not acting on behalf of a State who also "purposefully and materially supported hostilities against the United States" -- OR anyone whom a tribunal established by the "President or the Secretary of Defense" determines to be such a "combatant."
This definition greatly lengthens the list of those potentially subject to trial by military commissions. And although s.948d(a) appears to limit the commissions' applicability to "alien unlawful enemy combatant[s]," s.948d(c) makes the determination of "unlawful enemy combatant" status by a tribunal established by the President or SoD "dispositive for purposes of jurisdiction for trial...under this chapter." Given this administration's history on handling the law, I expect that this power will also be used to determine alienage, potentially subjecting citizens to trial by these commissions.
This stuff needs to be debated long, hard, and publicly. Attempting to force it through in a few days just before the pre-election break is unconscionable.