* Deploy the military domestically to American neighborhoods
* Seize United States citizens without judicial warrants
* Detain these citizens indefinitely without charges in military brigs
* Maintain these citizens in “incommunicado” status, inaccessible to their lawyers or to other citizens
It’s a funny thing, but I remember hearing from politicians and legal experts that under the Military Commissions Act of 2006, citizens would still be protected. Take Joanne Mariner of Findlaw, who in a piece that was otherwise quite critical of the MCA chided readers that under this newly passed law, “U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions.” Then there was Senator John Warner, who on September 27, 2006 adopted his most paternalistic, scolding tone to admonish people concerned about the civil liberties of citizens:
It is wrong to say that this provision captures any U.S. citizens. It does not. It is only directed at aliens–aliens, not U.S. citizens–bomb-makers, wherever they are in the world; those who provide the money to carry out the terrorism, wherever they are–again, only aliens and those who are preparing and using so many false documents.
Others more skeptical of arbitrary power struck a different tone, predicting that under the Bush administration’s enactment of the Military Commissions Act, U.S. citizens would indeed lose their rights. Consider Rep. Mark Udall’s speech to the House of Representatives on September 27, 2006:
…while the reference to ‘aliens’ seems to mean that this is not to apply to American citizens –who are not immune from being considered ‘enemy combatants’ –some legal experts say it is not completely clear that citizens would really have the ability to challenge their detentions.
I could not support any legislation intended to give the President–any president, of any party–authority to throw an American citizen into prison without what the Supreme Court has described as ‘a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker,’ and I prefer to err on the side of caution before voting for a measure that is not more clear than the bill before us on this point.
The position of the Bush administration proves the likes Joanne Mariner and John Warner wrong, and the likes of Mark Udall right: under the authority of the Military Commissions Act, the Bush administration has indeed asserted the right to detain citizens indefinitely without charge. But how is this possible, if Warner and Mariner are right that under the Military Commissions Act citizens are afforded habeas corpus rights to challenge their detention in a court of law?
How Does the Bush Administration Indefinitely Detain Citizens Under the Military Commissions Act?
Yes, how? The answer reiterates the extent to which the Bush administration is willing to push the interpretation of law beyond the point of reason in order to expand the reach of its arbitrary authority, in order to diminish the domain of individual liberty.
If you read the Military Commissions Act, you’ll notice the following:
In Section 948a(1) of the Act, the term “unlawful enemy combatant” is defined this way:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful
enemy combatant’ means—
‘‘(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);
‘‘(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.
This definition does not exclude citizens. Citizens can be classified as “unlawful enemy combatants.” Under this section what makes an “unlawful enemy combatant” under the Military Commissions Act is not conviction of a crime in a court of law, not the filing of charges, and not even the issuing of a warrant by an impartial judge. All that has to happen for a person (citizen or no) to be classified as an “unlawful enemy combatant” is that a body under total control of the President says they are one. Period.
Section 948a(3) defines an “alien unlawful enemy combatant” as an “unlawful enemy combatant” who “is not a citizen of the United States.” Section 948a(b) specifies that military commissions are only to be held for alien unlawful enemy combatants, and presumably therefore not for citizen unlawful enemy combatants.
Finally, Section 7(a) of the MCA takes away the habeas corpus rights of alien unlawful enemy combatants, but does not appear to specifically take away the habeas corpus of American citizens.
The bottom line: a reasonable reading of the Military Commissions Act gives the President arbitrary authority to classify citizens as unlawful enemy combatants, but does not provide the authority to put citizens before military commissions or to deny citizens the habeas corpus right to challenge detention in a court of law. Joanne Mariner would seem to be right…
… if the Bush administration were interested in a reasonable reading of the Military Commissions Act. Instead, as Mark Udall predicted, the Bush administration has taken the Military Commissions Act and pushed its authority under that act beyond all reasonable recognition.
Quoting from a Bush administration lawyer’s testimony before the Fourth Circuit Court on Halloween of 2007, one year after the passage of the Military Commissions Act:
Judge: But what you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant by the Executive.
Bush administration lawyer Gregory Garre: Yes, your honor.
Judge: But what you want is the power for the military to take them, take them back to the military base and perhaps hold them incommunicado.
Garre: Well, we don’t need that in this case.
Judge: But you did that here when you transferred him to military custody. You have the power, if he’s in military custody, to hold that person incommunicado.
Garre: That’s for some — at least for some period.
Judge: A good 16 months in this case, wasn’t it?
Garre: It was, your Honor. At some point that individual would have a right to counsel, and the Supreme Court hasn’t defined exact –
Judge: But you do that to citizens, as well.
Yes, that’s right. Citizens’ habeas corpus rights to challenge their arbitrary and indefinite detention aren’t removed, you see. The implementation of those rights is just delayed, month after month (repeat sixteen times).
This behavior of indefinite delay toward detained Americans (and actually toward alien residents of America as well) is prohibited by the United States Constitution. The Sixth Amendment to the U.S. Constitution guarantees:
…the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Bush administration defies not only reasonable sense but constitutional imperatives in its pursuit of the power of Gulag against every last soul on Earth, whether they have the status of citizen or not.
“Justice delayed is justice denied.” — William Gladstone