Balkinization  

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.


Comments:

"(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?
 

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.
 

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.
 

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.
 

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.
 

This comment has been removed by a blog administrator.
 

(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.
 

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.
 

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.

Dave
 

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.
 

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.
 

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.
 

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.
 

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

Patience, patience...
 

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?
 

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.
 

I wanted to thank you for this great article. I enjoyed every single part of it and I will be waiting for the new updates.
Polo tshirts

 

Thank you for sharing the information with us
OBAT KEPUTIHAN
 

Thank you for sharing
OBAT DARAH TINGGI
OBAT HERNIA
OBAT ASAM URAT
OBAT SINUSITIS
 

Woah! I’m really loving the template/theme of this website.
It’s simple, yet effective. A lot of times it’s
challenging to get that “perfect balance” between superb usability and visual appeal.
I must say you have done a amazing job with this. In addition, the blog
loads very quick for me on Chrome. Exceptional Blog!
cara mengobati asam urat secara alami dan cepat
 

This comment has been removed by the author.
 

nice article, thanks bagi anda yang ingin bertanya seputar kesehatan dan penyakit serta obat obatan herbal anda dapat mencari dan bertanya di Tanya herbal atau anda sedang mencari Cara Melangsingkan Perut Setelah Operasi Caesar atau informasi tentang batuk berdarah dan cara penyembuhannya
 

Licensed Moneylender
Powerloans
 

Post a Comment

Older Posts
Newer Posts
Home