Military Commissions Act

[bobman0330]

[ QUOTE ]
if the President signs a piece of paper that says Hillary Clinton is an unlawful enemy combatant, he does not need to give any reason, and that determination cannot be challenged anywhere. He can hold Senator Clinton in a military prison or a foreign prison for the rest of her life without any kind of hearing. And he can do the same thing to you, dear reader.

[/ QUOTE ]

I've only read the wikipedia article on the subject, but the definition of unlawful combatant there quoted:

" `(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."

says to me that the President cannot in fact sign a piece of paper declaring someone an unlawful combatant. It seems that a proceeding before a tribunal is needed.

Is this right?

[iron81]

Besides the whole "blah blah blah, they're destroying civil liberties" argument, I made this analysis of the legalities involved. There is more on the law in that thread if you want.

Also, the Supreme Court doesn't like Catch 22's when it comes to actions with grave implications on civil liberties. They'll find a way to review the new law.

Bobman, the reason those definitions don't necessarily protect anyone is because the President gets to pick the officers who make the determination who the enemy combatants are. Normally when you lock someone up forever, a court and a jury needs to ok it. That is what has changed under the legislation.

[bobman0330]

Iron,

Another quick question:
I just started looking at the text of this law. An earlier poster stated that US citizens deemed to be unlawful combatants no longer have a right to habeas. However, the only reference to habeas I saw was in section 7, which only denies HC to alien enemy combatants. Am I missing something?

Also, if you were king for a day, how would you resolve the issue of detainees? For example, say there's a Taliban/al Qaeda fighter being held at Guantanamo. No admissible evidence to establish beyond a reasonable doubt that he's been involved in terrorist acts. Is he a POW who must be released now that the Taliban has been defeated? Does he stay in prison until al Qaeda has been defeated? What if the evidence against him is classified, and its revelation might expose details of intelligence-gathering methods? I don't want to barrage you with issues, and address whatever you feel like. But I think a lot of critics of the administration's policy have the luxury of saying "This is bad because the GC is violated" without really addressing the problems that would arise from strict adherence to the GC. I don't think that sort of criticism does enough to move us towards an acceptable solution (if there is one) to the dilemma.

[iron81]

Bobman,

I checked the wiki and it looks like you are correct about the text of the law applying only to foreigners. I will have to alter my concerns:

1. The Administration gets to determine who is a foreigner. A couple cases where this is ambiguous are immigrants with green cards and Americans living abroad in cases like Victor Hamdi and the American recently charged with Treason whose name escapes me.

2. Foreigners have rights in America too. Immigrants who live in America enjoy the full range of Constitutional guarantees. While I am not proposing that Gitmo prisoners should have the right to walk to Cuba, international law is clear that there are exactly two categories that we can put these people in.

One is to treat them as criminals. To do this, we would have to bring them to New York, give them lawyers and observe all the right inherent in our criminal justice system. In your hypothetical, we wouldn't have any evidence against them, so this wouldn't work. While it is grossly immoral and illegal to be holding him if we don't have any evidence against him, there is another option. We also have the option of holding him as an official POW with rights outlined under the Geneva convention. This really isn't that bad a deal for the US: We get to hold him until the end of the War on Terror and we still get to interrogate him. The main restricton that the Geneva Convention imposes is that we can't torture him or subject him to "undue pressure". While this might mean we can't maximize the information we get out of him, cops obtain information from criminals all the time while under strict Constitutional restrictions, so I don't see why the military can't adapt to uphold our treaty obligations and our morality.

[illeagle]

A Pocket Veto is when the President fails to sign a bill within the 10 days allowed by the Constitution. Congress must be in adjournment in order for a pocket veto to take effect. If Congress is in session and the president fails to sign the bill, it becomes law without his signature.

Bill passed September 28th, 2006

Congress Adjourns September 29TH, 2006

Bill signed October 17th, 2006

So no worries right? Well besides the fact that it was passed in the first place without so much as a bat of the eye from the general public.