October 10, 2006

The Military Commissions Act & American Citizens

Carroll Andrew Morse

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--

`(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.

But the bill also gives an express definition of alien...
`(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.

Comments, although monitored, are not necessarily representative of the views Anchor Rising's contributors or approved by them. We reserve the right to delete or modify comments for any reason.

As I read this, I believe it empowers the government to detail and try as enemy combatants any illegal aliens engaged in any gang activity that could even loosely be described 'terrorist' in nature.

And I like that a lot.

Posted by: Greg at October 11, 2006 8:55 AM

When Bush signs MCA into law,he will add
one of his "signing statements" which will allow him to ignore any part of MCA
that he does not like. He is above the law.He has writen over 700 signing statements,more than all other 42 presidents combined.Laws do not apply to
RIP Bill of Rights 2000-2006

Posted by: jay at October 11, 2006 10:01 AM


You’ve descended into Ackerman-like hysterics. There’s no reason to “ignore” a law that doesn’t apply in the first place.

Posted by: Andrew at October 11, 2006 11:55 AM

Let's see here...on the one hand we can trust Bruce Ackerman, a preeminnent Con. Law Professor at one of the best law schools in the country (Yale), or we can trust someone named Carroll, who, uh, not sure who she is. Yeah, I think I'll go with the genius.

Posted by: Peter Ped at October 11, 2006 1:01 PM

Cheney said it best, on "Meet the Press"
"The President is above the law"

Posted by: jay at October 11, 2006 2:04 PM

Peter maybe if you read point 3 you would know what other liberals, who are just as educated are saying.

I mean, if you want to assume Ackerman's genius you might want to read the post first.

Posted by: george at October 11, 2006 5:24 PM

"(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities ..."

That seems pretty clear. Sometimes, it's not necessary to be a genius, just be able to read.

Posted by: SusanD at October 11, 2006 8:39 PM

I was a student of Professor Ackerman's at Yale, and while he is undoubtedly a very intelligent man, he definitely makes his fair share of mistakes.

I remember a particular instance in which he stated in class that an opinion in The Slaughterhouse Cases had said that only black slavery was prohibited by the 13th Amendment. I pointed out that he was misreading the sentence that said that the 13th Amendment was meant to prohibit "the type of slavery that was present in this country" when he attributed a racial component to it, since the opinion went on to say that surely if the "Chinese cooley system" was implemented in the U.S. it would also be prohibited by the 13th Amendment. As I noted, the sentence merely distinguished between chattel slavery and the silly "monopoly-as-a-form-of-slavery" argument espoused by the plaintiffs in The Slaughterhouse Cases (BTW, the plaintiffs' argument based on the Privileges and Immunities Clause of the 14th Amendment was far from silly, and the Court was incorrect to have ruled the way it did). Ackerman later admitted he had been mistaken, but this was a case that he had read 100 times over many years and it took a student to point out the obvious.

So no, Bruce Ackerman is not always right, and it does appear that he completely missed the definition of "alien" in the Military Commissions Act of 2006. Sadly, I cannot rule out that he purposely missed that definition, since he sometimes lets his personal opinions interfere with his legal analysis. (The same thing happened when Ackerman wrote an article claiming that the Senate was barred from trying Clinton for impeachment in January 1999 because the House had impeached him in 1998, which was during the prior Congress and thus the impeachment had lapsed; Ackerman did not notice that the power to impeach and the power to try an impeachment are two separate powers conferred upon the House and Senate, respectively, by the Constitution, and thus the impeachment trial was not analogous to the Senate considering passage of a bill passed by the House in a prior Congress.)

Posted by: AuH2ORepublican at October 12, 2006 12:52 PM

Andrew, tell the truth, you know that this law gives the presdeint the right to decide who is and who is not an enemy combatant, and that includes US citizens. Just because you post selections here and on RI future doesn't mean people won't read thw whole thing.

Posted by: Pat at October 18, 2006 3:14 PM

When Congress was debating the military tribunal law in September, some Americans were reassured to hear that the law would apply to non-U.S. citizens, such as legal resident aliens and foreigners. Indeed, the law does specify that "illegal enemy combatants" must be aliens who allegedly have attacked U.S. targets or those of U.S. military allies.

But the law goes much further when it addresses what can happen to people alleged to have given aid and comfort to America's enemies. According to the law's language, even American citizens who are accused of helping terrorists can be shunted into the military tribunal system where they could languish indefinitely without constitutional protections.

"Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission," the law states.

"Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy [presumably U.S. military allies, such as Great Britain and Israel], shall be punished as a military commission … may direct. …
"Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission … may direct. …
"Any person subject to this chapter who conspires to commit one of the more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission … may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission … may direct."

In other words, a wide variety of alleged crimes, including some specifically targeted at citizens with "an allegiance or duty to the United States," would be transferred from civilian courts to military tribunals, where habeas corpus and other constitutional rights would not apply.

For the full story on how today's Americans have betrayed the Founders,
go to Consortiumnews.com at http://www.consortiumnews.com

Posted by: Raymond Moore at October 19, 2006 12:09 AM


Every place where the phrase "any person subject to this chapter" or something similar is used limits the application of the law to aliens.


You just pulled a Clintonian language parse. Yes, the definitions section of the bill does not confine the definition of "unlawful enemy combatant" to aliens (as I stated in the primary post). But that was not the original complaint. The orginal complaint was that the President could use this law to suspend the Habeas Corpus rights of an American citizen.

So what exactly can the President do to a citizen declared to be an unlawful combatant under this bill? The answer is absolutely nothing that he couldn't have done BEFORE the bill was passed, because the bill only applies to alien unlawful enemy combatants.

Posted by: Andrew at October 19, 2006 12:06 PM

If the President falsely accuses some ordinary citizen or political adversary in congress as being an enemy combatant and there is no habeas corpus, how can it be determined that he is not an enemy combatant? Seems like an effective way to get rid of political adversaries. There is no remedy.

Posted by: RICHARD at October 19, 2006 3:05 PM