Detainee Bill And Enemy Combatants
One camp, led by Yale law professor Bruce Ackerman (and perhaps Senate Judiciary Committee Chair Arlen Specter, R-PA), believes the bill allows citizens to be declared enemy combatants and held indefinitely.
The other camp argues that the Hamdi (2004) and Hamdan (2006) Supreme Court decisions preempt such a move.
Who's right?
Definitions Are Us
I'm not a lawyer, but I can read legislation (pdf).
Here's the House definition of an "unlawful enemy combatant" -- that is, people who don't wear uniforms or belong to a state army:
(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.
However, only "alien" (non-US citizen) unlawful enemy combatant are subject to trial by the military commission established by the law.
Open-Ended Definitions
But Ackerman isn't talking about a trial -- he's talking about detention.
Ackerman is also talking about the breadth of activity covered by the phrase "purposefully and materially support[ing] hostilities."
The President can determine what constitutes an action that makes you an "enemy combatant" ... but remember, this law's commission doesn't apply to you. It just applies only to foreign nationals. So, like the Japanese-Americans during WWII ... if you look wrong or contribute to the wrong cause, you could find yourself "detained."
Moreover, Lawyers, Guns & Money argues that this bill's suspension of the writ of habeas corpus is within the power of the Congress.
[O]pponents of this scandalous legislation should not use the courts as a crutch. Given the power of statist conservatives on the Supreme Court and the fact that Congress' constitutional claims are very strong, and the general tendency of courts to defer to the executive when it makes "national security" claims, it is overwhelmingly likely that if it passes the legislation will be upheld.
Sen. Byrd (D-WV) tried, unsuccessfully, to include a sunset clause in the Senate bill. Some believe that would have made the suspension of habeus corpus a more tenable argument because, well, the timeline would have clearly made it a suspension:
Article 1, S 9:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
And it's not just liberal lefties who worry about suspending habeus corpus. From a Senate Judiciary Committee hearing on Monday:
"A persuasive argument can be made that the Writ of Habeas Corpus, the Great Writ, is the single most important bulwark in protecting our rights and freedoms ... and those who have suspended it have often been treated harshly by history," said John Huston, a retired rear admiral and former top lawyer in the Navy, at a hearing called Monday by the Senate Judiciary Committee.
"It is too facile to say that the men detained in Guantánamo 'are all terrorists,' 'the worst of the worst,' and 'all killers.' Maybe they are. Maybe they aren't. The point of habeas corpus is to answer those questions," he adds.
Dahlia Lithwick at Slate reminds us of another reason for caution:
Last time Congress rubber-stamped a major terrorism-related law no one had bothered to read in the first place, we got the Patriot Act. That alone should lead us to wonder whether there shouldn't be a mandatory three-month cooling-off period whenever Congress enacts broad laws that rewrite the Constitution.
The House bill was introduced on the 25th and passed on the 27th ... with rules suspension along the way.
60 Years Ago: Living Within The Law
As Sen. Dodd (D-CT) and others have noted: this week is the 60th anniversary of the International Military Tribunal at Nuremberg. The Daily Mail writes: "Never before had an attempt been made legally to indict the leadership of a nation for waging war."
Ironically, both Churchill and Roosevelt (albeit temporarily) wanted to simply execute the principal Nazis. But the Soviets pressed for a trial. Stalin: "There must be no executions without trial; otherwise the world would say we were afraid to try them."
Dodd notes that his father, Thomas, helped prosecute the trials:
He viewed Nuremberg as one of the most pivotal moments in our history – where America chose to uphold the rule of law rather than succumb to rule of the mob. Let me be clear: these enemies of the United States were not given the opportunity to walk away from their crimes. Rather, they were given the right to face their accuser, the right to confront evidence against them, and the right to a fair trial. Underlying that decision was the conviction that this nation must not tailor its most fundamental principles to the conflict of the moment -- and the recognition that if we did, we would be walking in the very footsteps of the enemies we despised.
If we could publicly try Nazi leaders 60 years ago, we could try the Gitmo detainees -- if they truly had committed acts heinous enough for trial and if we had evidence to support the claims.
But we don't have that evidence. And it has been reported over and over again -- but somehow, the story fails to get legs. In February, the Miami Herald reported that only 8 percent of the Guantanamo Bay detainess have been labeled "al Qaeda" fighters.
The National Journal reviewed about 130 cases (publicly available court documents) and found most had not been captured on a battlefield -- rather, most were captured in Pakistan. Less than half were charged with attacking the US.
A law professor at Seton Hall analyzed Pentagon data on all detainees. "Only 8 percent of detainees at Guantanamo were labeled by the Defense Department as 'al Qaeda fighters,' they found, and just 11 percent had been captured 'on the battlefield' by coalition forces."
This has been the status quo for five years -- despite Supreme Court rulings to the contrary. And now this special treatment may be approved for citizens.
Two-Faced Senators
If Senators to had to vote in concert with their rhetoric -- or be thrown out of office -- then neither Senate Intelligence Committee Chair Specter nor ranking Democrat Senate Intelligence Committee member Jay Rockefeller would be reelected. Here's Greenwald, on their floor speech versus their votes:
Jay Rockefeller ... is the ranking Democrat on the Senate Intelligence Committee... he complained that the White House has concealed all information about the interrogation program and that the Intelligence Committee members (including him) therefore know nothing about it. His amendment to compel reports to Congress was defeated with all Republicans (except Chafee) voting against it. He proceeded to vote for the underlying bill anyway, thereby legalizing a program he admits he knows nothing about (and will continue to know nothing about).
During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.
This bill is not about keeping the country safe from terrorists. It's about expanding the power of the Presidency.
And by passing this current law, Congress proves it is more worried about sound-bites in an election year than the long-term health of the nation's Constitutional government with its separation of powers.
Also, see, Congress Moves Forward On Bush Detainee Bill. In the blogosphere, Then They Came For The Americans, Vanity