The Military Commissions Act & American Citizens
1. How does the Military Commissions Act of 2006, recently passed by Congress, impact the right of American citizens to petition for a writ of Habeas Corpus?
In a word (two actually), it doesn’t. Here is the first line of the act after the definitions are finished…
(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.Most of what follows in the bill is part of the chapter defined above. Nothing in the bill applies to American citizens.
2. So what’s the controversy?
Yale law professor Bruce Ackerman wrote a Los Angeles Times column where he said the MCA “authorizes the president to seize American citizens as enemy combatants” and hold them indefinitely…
BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.But since the MCA applies only to aliens, Professor Ackerman is wrong. His column can only be described as hysterical.
3. Bruce Ackerman is a Yale law professor. You are a yahoo-blogger. Why should anyone listen to you?
Because even Bush-bashers who don’t like the MCA very carefully parse their language to exclude American citizens from the discussion when lamenting its passage. Here’s Senator Patrick Leahy commenting on the bill…
And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk.And here is Andrew Cohen, speaking very carefully in his Washington Post blog…
There will be a whole new class of residents who can be thrown in jail by the President and have to stay there indefinitely without ever having to face charges or get a trial.Note that Mr. Cohen is careful to say residents, not citizens.
And there are other honest liberals, like Columbia Law Professor and Findlaw columnist Michael C. Dorf, who think that the MCA stinks, but don’t write about a suspension of Habeas Corpus rights of American citizens in their criticism of it.
4. What might have led Professor Ackerman to believe that the MCA applied to citizens?
I can only speculate. The definitions section of the bill does contain language that includes a rather vague designation of “unlawful enemy combatant” that could apply to citizens?
`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant’ means–But the bill also gives an express definition of alien…
`(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.
`(3) ALIEN- The term `alien’ means a person who is not a citizen of the United States.Nothing that follows in the MCA allows someone who is not both an “unlawful enemy combatant” and an “alien” (see question 1 above) to fall under its jurisdiction. In other words, even if the President designates me as an unlawful enemy combatant, nothing in the MCA applies to me because I am not an alien.
5. So where does that leave the state of law regarding American citizens who participate in terrorist attacks against the United States?
Right in the same place we were before the MCA was passed, in a tug of war between the President and the courts, with Congress hiding from the issue.
There has been one case of an American citizen being designated an enemy combatant while on American soil, the case of Jose Padilla, who was arrested in Chicago in 2002 and detained as an enemy combatant.
As Michael Dorf explains, the not-entirely-clarifying results of the case have been an Eleventh Circuit Court of Appeals ruling that the President had the power to hold [Padilla] in military custody and the Supreme Court declining to hear a Habeas Corpus appeal filed by Padilla. The Supreme Court declined taking the case because the government transferred Padilla to civilian custody during the appeal process, rendering the question Habeas Corpus moot and leaving the fundamental question of Habeas Corpus rights unresolved.
The way our system of government is supposed to work, it is Congress’ responsibility to pass a law that clears up this ambiguity. Until they do, it will continue to be treated on an ad-hoc case-by-case basis by the courts.