October 20, 2006

Distorting the Military Commissions Act II

Carroll Andrew Morse

Alas, another Rhode Island blogger has lost herself in the progressive fever-swamps because of the Military Commissions Act. Now Sheila Lennon of the Projo?s Subterranean Homepage News is claiming that the Military Commissions Act can be used to prevent American citizens from petitioning for a writ of Habeas Corpus...

Yes, anyone can not (sic, I think Ms. Lennon meant "now") be "disappeared" at the pleasure of the President. This abrogation of the most basic right to challenge the legality of your detention is unconstitutional. The Supreme Court must overturn it.
Her fears are based on Keith Olbermann's inaccurate MSNBC rant against the MCA. But despite Olbermann's delusions, it is not true that the MCA means that anyone can be made to disappear at the pleasure of the President, because...
  1. The MCA does not apply to American citizens.
  2. Everyone -- even aliens -- detained under the MCA has an express right to be represented by a defense counsel of their own choosing. This is from section 949c of the MCA...
    (3) The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel
    (A) is a United States citizen;
    (B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
    (C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
    (D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
    (E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
  3. And nothing in the MCA prevents someone improperly detained under the MCA from challenging the claim (with the help of his or her defense counsel) that he or she is not an American citizen in a regular civilian court, outside of the MCA system.
Furthermore, Ms. Lennon's claim that the MCA is unconstitutional makes no sense. As Adam J. White explained in the Weekly Standard, all that the MCA does is restore the scope of Habeas Corpus to the scope established in the 1950 case of Johnson v. Eisentrager, a precedent ignored by the Court its 2004 Rasul v. Bush ruling. Because you disagree with something doesn't make it unconstitutional. What exactly is the argument that the Supreme Court was "wrong" in interpreting existing Habeas Corpus statutes one way in 1950, but "right" when interpreting them differently in 2004?

I hope liberals are beginning to realize how much the hysteria over the MCA undercuts the claim that they are the reality-based community. But there is always hope! If bloggers like Ms. Lennon would pay more attention to the right-blogosphere, they would be less likely to make such gross errors of fact.

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.

If bloggers like Ms. Lennon would pay more attention to the right-blogosphere, they would be less likely to make such gross errors of fact.

Dude, I'm sorry, really, I don't mean to troll, but this is the funniest thing I've read so far today.

On a more substantive note, I truly don't understand why it baffles you that we're freaked out by statements like this:

In a notice dated Wednesday, the Justice Department listed 196 pending habeas cases, some of which cover groups of detainees. The new Military Commissions Act (MCA), it said, provides that "no court, justice, or judge" can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future.
Posted by: mrh at October 20, 2006 11:45 AM

How many of those 196 petitons involve American citizens?

And if the sentence you excerpted really is the funniest thing you've read all day, you must be confining yourself to an incredibly dry set of reading material.

Posted by: Andrew at October 20, 2006 12:28 PM

I don't know how many of them are American citizens. The phrase "anyone designated as an enemy combatant, now or in the future" frightens me.

That aside, do you think it's ok to strip habeus from non-citizens?

Posted by: mrh at October 20, 2006 12:34 PM

"That aside, do you think it's ok to strip habeus from non-citizens?"

Yes. Yes I do. Next we need to strip their legal right to access to health care, welfare, schooling, bank accounts, mortgages, etc.. and stop giving them incentives to be here.

Posted by: Greg at October 20, 2006 12:56 PM

Eek. Creepy nativist anti-immigrant alert! Y'all come over on the Mayflower, Greg?

Posted by: mrh at October 20, 2006 1:07 PM

I'm not a nativist. I'm just not a bleeding-heart liberal that believes that everyone who happens to be inside our borders should be entitled to services that used to be reserved for legal citizens of the United States.

If we disincentivise the illegal aliens by taking away their perceived 'rights' to services they don't pay for they'll stop coming over here.

Posted by: Greg at October 20, 2006 1:10 PM

Catch a Canadian citizen at JFK Airport
and send him to Syria for a one year sabbatical.

Posted by: jay at October 20, 2006 1:32 PM

Greg is confusing things a bit. Loving the false dichotomy between nativism and bleeding hearts, the idea that habeus is a "service" immigrants aren't paying for, and the idea that eliminating habeus is actually a way to control (or at least disincentivise) immigration.


Posted by: mrh at October 20, 2006 1:36 PM

No, habeus is a RIGHT only applicable to citizens. I'd prefer that illegal aliens of any race, color or creed caught committing crimes in our country simply be taken out back and shot instead of wasting our time in court, deporting them, and having them waltz back across the border again.

Posted by: Greg at October 20, 2006 3:20 PM

One reason we're baffled, MRH, or perhaps a reason you're freaked out, is that you seem to present these matters for analysis on a sliding contextual scale. Note, for example, the paragraph before the one you quote from the WaPo piece in question:

Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District Court in Washington that it no longer has jurisdiction to consider hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison.

In other words, the "no court, justice, or judge" — the only actual quote provided from a notice for which I cannot find the full text online — applies only to inmates already in Gitmo and designated as enemy combatants. I'd be willing to bet that the reason a more substantial quotation is not offered is that the Post is skewing, or greatly exaggerating, the DOJ's statement.

Apart from long experience, I base my cynicism on the fact that the paragraph following the one that you quote shifts gears in a way that indicates dishonesty or extremely poor reportage:

Beyond those already imprisoned at Guantanamo or elsewhere, the law applies to all non-U.S. citizens, including permanent U.S. residents.

Any writer/editor/publisher/aware entity can understand that the order of the text here implies that this particular aspect of the law (i.e., "no court, justice, or judge") applies to those imprisoned "elsewhere" and "all non-U.S. citizens." That does not appear to be the case, as Andrew has explained in the post, and with consideration of the fact that the paragraph does not begin "the notice also said…".

And none of this addresses the further Olbermann/Lennon slide of adding the word "anyone" to the matter.

So you can breathe a little easier, and you can do your fellow Americans (and their non-citizen guests) the favor of not scaring them unjustifiably for political ends.

Posted by: Justin Katz at October 20, 2006 5:50 PM

Justin, that's fair enough, and I've come to be reassured about about the MCA with regard to US citizens and habeus.

Of course, I think the law is disastrous enough without exaggeration.

Posted by: mrh at October 23, 2006 11:36 AM