Balkinization: Does the Military Commissions Act apply to citizens?

Comments:

what about this, from the House bill? seems to limit the commissions' authority to aliens.

Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

# posted by

chris s : 12:53 PM

"(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."

Given that Congress is not setting forth any rule regarding who can or cannot be determined to be an unlawful enemy combatant by the Executive (i.e. an unlawful enemy combatant is whoever the Executive says so), would this provision be a delegation of legislative power from Congress to the Executive? If so, would this delegation be permissible under the U.S. Constitution?

# posted by

zarevitz : 2:00 PM

"The citizen [imprisoned as an alien] 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."

Yes, but how does the citizen get into court to challenge the constitutionality of the MCA? I suppose that a relative of the citizen would have standing -- if he knows where the citizen has "disappeared" to.

# posted by

Henry : 2:02 PM

From Wikipedia:

Torture is any act by which severe pain, whether physical or psychological, is intentionally inflicted on a person as a means of intimidation, deterrence, revenge, punishment, sadism, information gathering, or to obtain false confessions for propaganda or political purposes. It can be used as an interrogation tactic to extract confessions. Torture is also used as a method of coercion or as a tool to control groups seen as a threat by governments. Throughout history, it has often been used as a method of effecting religious conversion or political “re-education.” Torture is almost universally considered to be an extreme violation of human rights, as stated by the Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention agree not to torture protected persons (enemy civilians and POWs) in armed conflicts, and signatories of the UN Convention Against Torture agree not to intentionally inflict severe pain or suffering on anyone, to obtain information or a confession, to punish them, or to coerce them or a third person.

# posted by

peter : 2:11 PM

Professor Balkin:...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.(emphasis added)

This, sir, is a compelling example of why we must counter the war meme itself if we hope to have any real effect in our opposition to the continued power-grabs of PNAC and the intelligence community. Respectfully, I repeat my plea for you to take up that cause.

# posted by

Robert Link : 2:14 PM

So, how much does the Senate version differ from HR6166 as passed? I'm reading that it was amended, but not finding details on how.

# posted by

catastrophile : 4:17 PM

Professor Balkin:

The definition of unlawful combatants is not limited to aliens because citizens can also in fact be unlawful enemy combatants fighting for al Qaeda.

This legislation largely leaves unanswered what interrogation we can subject citizen unlawful combatants to for intelligence gathering purposes, but information obtained in such interrogations is unlikely to be admitted a criminal evidence in any court which has jurisdiction to try a citizen unlawful enemy combatant. Only aliens are subject to military commissions an civilian or UCMJ courts use the standard federal rules of evidence.

# posted by

Bart DePalma : 4:24 PM

I don't understand your point about Hamdi. You say that section 948a(1)(ii) violates the Due Process clause because "it purports to make determinations of enemy combatant status conclusive." But the determinations it purports to make conclusive are those of the "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." All Hamdi reads due process to require is a "meaningful opportunity to contest the factual basis of the detention before a neutral decisionmaker." Obviously, that doesn't have to be an Article III court. Why couldn't it be the CSTR?

# posted by

ACB : 5:36 PM

This comment has been removed by a blog administrator.

# posted by

athomas : 6:47 PM

(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."

Although this section refers to an individual, I worry about the tribunal applying the definition of enemy combatant to a class of people.

# posted by

athomas : 6:48 PM

ACB--because the CSRT (which should NOT be confused with a military commission) does not, in fact, provide any semblance of due process. In a CSRT, a prisoner:

--the definition of "enemy combatant" is incredibly broad, including people who never fired a weapon, never knowingly supported the Taliban or Al Qaeda, never encountered US troops, acted under extreme duress, etc. etc. etc.
--a prisoner has the burden of proving innocence
--all of the evidence against him is classified
--he cannot call witnesses or submit documents unless the tribunal decides they are "reasonably available"
--he does not get a lawyer
--evidence admitted under torture is allowed.

etc.

# posted by

Katherine : 7:10 PM

Can on branch of government deny the efforts of another? In other words, does the language of the MCA disallow the Judiciary from acting?

# posted by

Rich : 7:16 PM

Can't type, I'm so angry: Does ONE branch of gov't get to excluide another in the legal process??

# posted by

Rich : 7:19 PM

Never before have I been as ashamed and disgusted to be an American as I am today. As we struggle to supposedly spread the ideals of freedom and democracy around the globe it is ironic that the US administration and the Congress, apparently with the support and blessings of many many Americans, are vigorously curtailing those ideals at home.

# posted by

lennybruce : 6:29 AM

# posted by

katie nalle : 12:27 PM

lenny bruce(get ready for the hot lead enema folks):

What Bush does when he talks about spreading freedom and democracy is speaking in code. He speaks of exporting our brand of freedom. By that he means his definition of "our" which obviously pertains to the oligarchs with whom he identifies and the authoritarians he admires so much.

The hardest thing I have had to do lately is explain to a Russian friend in St.Petersburg with a group of Russian students listening why it is so difficult to remove a man who a majority of the country did not vote for and who they do not support. The Russians don't understand, nor do the Romanians or other Eastern European people, that the United States is not the great shining light of democracy they have been lead to believe it is. They cannot accept that our electoral system can be broken.

It's kind of a cognitive dissonance thing with them. We are America, that concept stands for something with them that it ceeased to be here at home more than a generation ago.

# posted by

Smedley : 12:39 PM

The clear way around the habeas corpus restriction to aliens is to detain a citizen as an unlawful enemy combatant, an unappeasable designation, and then immediately ship him to a CIA prison abroad, and leave him there indefinitely if that is what is wanted. Bush has acknowledged the existence of secret CIA prisons abroad. This occurred when, on Sept. 6, 2006, he called for the authority to try prisoners by military commissions. Indeed, there is a network of such CIA prisons outside the country. The CIA’s practice is to interrogate a prisoner in the US, if that is initially convenient, and, if he doesn't cooperate as required, to then threaten him with being sent abroad for torture and if that does not yield results, then to actually send them to a CIA prison abroad for “alternative interrogation techniques” and a longer prison stay. This procedure was followed in the case of Mahar Arar, the innocent Canadian computer engineer, who was turned over to the CIA in the US by Canadian authorities based on false information and who was then taken abroad and beaten with battery cables by CIA agents in a CIA prison, but later found to be innocent and released.

# posted by

KimballCorson : 1:01 PM

Katherine, as far as I can tell from reading the bill - someone correct me if I'm wrong - almost all of the characterizations you make are untrue. The accused to get lawyers, there is provision for reasonable discovery and evidence obtained under torture is specifically excluded.

1. They do get lawyers, but only once they are brought before the Military Commission. Prior to that stage, I see no right to counsel. Section 950h(c).

2. The ban on evidence obtained by torture is a semantic game. The Administration has internally decided that certain interrogation techniques are not "torture" even though they obviously are and have been held to be in the past, including by US tribunals.

3. The section on "discovery" (949j) is not very clear. As I read it, the only right given is the right to subpoena witnesses and documents for trial. The only actual "discovery" is that the prosecution is obligated to turn over exculpatory evidence. That, of course, is a right which depends on the good faith of the prosecutor. As I read it, the accused has no right at all to conduct what we would ordinarily call "discovery" -- that is, to conduct his OWN investigation into the facts using the process of the court.

# posted by

Mark Field : 2:44 PM

I don't understand the point about section 948a(1)(ii) "purport[ing] to make determinations of enemy combatant status conclusive."

Nowhere does section 948a(1) say that Courts are not permitted to be involved. There is no claim that an executive branch determination of enemy combatant status excludes a Court finding, on habeas corpus, the opposite. Indeed, I don't see anything interesting about section 948a(1) at all. It is the same as any other provision of law regarding administrative decisionmaking. It is the same, for example, as an environmental law that provides that, e.g., a source of pollution is defined as a source that has been determined to be such by some adminsitrative review. That's not a statement that something is "conclusively" a source of pollution such that the courts couldn't find otherwise. Same here - this law doesn't provide that if a person is determined by a Review Tribunalto be a UEC that the courts couldn't find otherwise.

# posted by

Al : 1:41 PM

This is an appalling piece of legislation on so many levels, but I think JB must be mistaken about the applicability of the "dispositive" determination of unlawful enemy combatant status where the alleged UEC is, in fact, a citizen. If I am reading the enrolled version of the bill correctly, there are two elements required for jurisdiction of the military commissions. To be subject to their jurisdiction, one must be both an alien and an unlawful enemy combatant. Because the phrase “for purposes of jurisdiction” limits the extent to which the determination of unlawful enemy combatant status is dispositive, it should have no relevance to the citizen who is not subject to military commission jurisdiction. The erroneous determination that someone is an alien is not dispositive for purposes of jurisdiction of the military commissions, and the citizen still has the ability to bring a habeas writ.

# posted by

Psittakos : 2:23 PM

Nowhere does section 948a(1) say that Courts are not permitted to be involved. There is no claim that an executive branch determination of enemy combatant status excludes a Court finding, on habeas corpus, the opposite.

Section 948d(c) expressly provides that a determination of a "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter."

This means that any person found to be a UEC is per se subject to the jurisdiction of the Military Commission. Under Section 950g, the only judicial review of the Military Commission is through the DC Circuit. Section 950j(b) eliminates habeas corpus review.

I realized I left unspoken an important fact in my previous post. I pointed out that the right to counsel only applied at the Military Commission stage. The significance of this is that the Administration has no obligation to bring a prisoner before a commission. If they don't, the prisoner just has to sit in his cell, without access to any court and without an attorney. Forever.

# posted by

Mark Field : 3:15 PM

This is a bad bill, and I certainly do not like the way it purports to strip aliens of their habeas rights. However, it does appear to treat citizens differently.

948d(c) says the determination by the executive branch that a person is an unlawful enemy combatant is "dispositive for purposes of jurisdiction for trial by military commission under this chapter." That does not mean that the determination of UEC status is sufficient for such jurisdiction. The person must still be an alien to be tried by military commission, and the determination of alien status is not dispositive for purposes of jurisdiction for trial by military commission.

So, citizens cannot simply be herded into military commission trials without habeas rights as aliens can.

# posted by

Psittakos : 4:35 PM

So, citizens cannot simply be herded into military commission trials without habeas rights as aliens can.

Agreed. I think -- it's not a very easy statute to parse, but I believe you're right.

# posted by

Mark Field : 5:00 PM

"So, citizens cannot simply be herded into military commission trials without habeas rights as aliens can."

Patience, patience...

# posted by

Michael Stiber : 7:16 PM

So under the new law, any of us criticizing the führer's policies can be declared an "unlawful combatant"...

Can the ovens be too far off?

# posted by

Catnapping : 10:37 AM

Why speak of lawyers. The US Navy lawyer who won the supreme court case was just passed over for promotion to commander (meaning he was fired by the Navy) and the civil rights lawyer is on her way to jail. Exactly what quality of representation do you expect to receive. See you in Gitmo!

# posted by

buck : 5:29 PM

"(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006...

Am I missing something when I ask at what point "Ex Post Facto" law became acceptable? I though no law could be made to illegalize a previously legal act. Or am I misunterpreting something?

Thanks.

# posted by

BearPaws : 7:57 AM

Balkinization... is that a bad thing ? comp command I wonder if our politicians made the effort to put themselves into a normal persons shoes for a day.

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