If you want to read the final text of the Military Commissions Act of 2006, click here for a copy mirrored from the Library of Congress. You’ll need to read it to understand S. 185, a bill before the Congress that would strike two paragraphs of the Act and replace them with another.

The action portion of S. 185 reads as follows:

SEC. 2. RESTORATION OF HABEAS CORPUS FOR THOSE DETAINED BY THE UNITED STATES.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking subsection (e).

(b) Title 10- Section 950j of title 10, United States Code, is amended by striking subsection (b) and inserting the following:

`(b) Limited Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.’.

Clear as mud, huh? All right, let’s flesh this out. Consulting the Act, here’s the text of Section 2241 of title 28, United States Code:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

S. 185 would delete this text from the U.S. Code (that is, from the law). Also to be deleted from U.S. Code would be Title 10- Section 950j of title 10, which reads:

(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

If S. 185 were passed, this section would be replaced by the following text:

(b) Limited Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

The changes wrought by S. 185 are simple and limited. S. 185 would restore the right of habeas corpus — which is in this case the right of someone accused of being an enemy combatant to challenge the factual basis for their imprisonment.

That’s good. But it’s only one part of the entire Military Commissions Act. Other sections are implicitly preserved, including the declaration of any person whatsoever as an “unlawful enemy combatant” on the arbitrary say-so of a committee of the president, the granting to the president the right to define what torture is, the use of hearsay evidence, the inability of defendants to actually see the evidence against them, and so on (see a third-party review of the MCA here). S. 185 even explicitly reiterates the inability of people deemed “unlawful enemy combatants” to challenge the lawfulness or constitutionality of the Military Commissions Act. That’s a right all those threatened by the Act should have — a right essential to the preservation of the constitutional basis of law. That the authors of the Military Commissions Act (and now the authors of S. 185) consider it necessary to prevent people threatened by the Act from challenging its legal appropriateness seems to me to be an indication that they know it’s constitutionally inappropriate. If it were robust, why would you need to restrict constitutional challenges, since clearly they’d go nowhere?

After looking into the references S. 185 makes, to the changes S. 185 would make and to the aspects of the MCA that S. 185 either ignores or reinforces, I have to say I’m really disappointed by it. The bill seems designed to fix one portion of the Military Commissions Act but to let the other odious portions of the Act stand. I’m worried that if this bill were passed, it would mark the point where reform of the Military Commissions Act would end.