On October 17, 2006, President Bush signed into law the Military Commissions Act 2006.

Despot President

Like it or not, your freedom now serves at the personal whim of the president of the United States because you can now be held in a jail or a prison or a dusky room in another country for as long as the president wishes and you have no right to a trial or to know why you are being held against your wishes. Habeas Corpus is now dead but here’s what it used to mean:

Lat. “you have the body” Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. 

The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

Despot President

Here’s why you now serve your freedom at the leisure of a Despot as President as discussed by MSNBC’s Keith Olbermann and George Washington University Constitutional Law Professor Jonathan Turley [emphasis added]:

OLBERMANN: Does this mean that under this law, ultimately the only thing keeping you, I, or the viewer out of Gitmo is the sanity and honesty of the president of the United States?TURLEY: It does. And it’s a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison said that he created a system essentially to be run by devils, where they could not do harm, because we didn’t rely on their good motivations. Now we must. And people have no idea how significant this is. What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values. It couldn’t be more significant. And the strange thing is, we’ve become sort of constitutional couch potatoes. I mean, the Congress just gave the president despotic powers, and you could hear the yawn across the country as people turned to, you know, “Dancing with the Stars.” I mean, it’s otherworldly.

OLBERMANN: Is there one defense against this, the legal challenges against particularly the suspension or elimination of habeas corpus from the equation? And where do they stand, and how likely are they to overturn this action today?

TURLEY: Well, you know what? I think people are fooling themselves if they believe that the courts will once again stop this president from taking over–taking almost absolute power…. And so we may have, in this country, some type of uber-president, some absolute ruler, and it’ll be up to him who gets put away as an enemy combatant, held without trial. It’s something that no one thought–certainly I didn’t think–was possible in the United States. And I am not too sure how we got to this point. But people clearly don’t realize what a fundamental change it is about who we are as a country. What happened today changed us. And I’m not too sure we’re going to change back anytime soon.

OLBERMANN: The president reiterated today the United States does not torture. Does this law actually guarantee anything like that?

TURLEY: That’s actually when I turned off my TV set, because I couldn’t believe it. You know, the United States has engaged in torture. And the whole world community has denounced the views of this administration, its early views that the president could order torture, could cause injury up to organ failure or death. The administration has already established that it has engaged in things like waterboarding, which is not just torture. We prosecuted people after World War II for waterboarding prisoners. We treated it as a war crime. And my God, what a change of fate, where we are now embracing the very thing that we once prosecuted people for…. This is going to go down in history as one of our greatest self-inflicted wounds. And I think you can feel the judgment of history. It won’t be kind to President Bush. But frankly, I don’t think that it will be kind to the rest of us. I think that history will ask, Where were you? What did you do when this thing was signed into law? There were people that protested the Japanese concentration camps, there were people that protested these other acts. But we are strangely silent in this national yawn as our rights evaporate.

Despot President

The next day Keith Olbermann said this [emphasis added]:

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from. We have been here before–and we have been here before led here–by men better and wiser and nobler than George W. Bush.

We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives, only to watch him use those acts to jail newspaper editors. American newspaper editors, in American jails, for things they wrote about America. We have been here when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives, only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war.

American public speakers, in American jails, for things they said about America. And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9066 was necessary to save American lives, only to watch him use that order to imprison and pauperize 110,000 Americans while his man in charge, General DeWitt, told Congress: “It makes no difference whether he is an American citizen–he is still a Japanese.” American citizens, in American camps, for something they neither wrote nor said nor did, but for the choices they or their ancestors had made about coming to America. Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons.

And each was a betrayal of that for which the president who advocated them claimed to be fighting…. And if you think this hyperbole or hysteria, ask the newspaper editors when John Adams was president or the pacifists when Woodrow Wilson was president or the Japanese at Manzanar when Franklin Roosevelt was president.

And if you somehow think habeas corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant” — exactly how are you going to convince them to give you a court hearing to prove you are not?

Despot President

When will we awaken from our national sleepwalking?

When will the father stand up to correct the son?

Is the Military Commissions Act 2006 our first ghost of Abu Ghraib?


  1. Interesting how this relates to yesterday’s blog. Speak now or we may be in the same position of silence help from people in other countries write, speak and even think freely.

  2. Dave —
    Katharine Harris doesn’t count in this discussion. She was never in the hunt. The Republicans didn’t even want her to run because she guaranteed defeat. She is selfish and abysmal and she deserves whatever finishing touch the voters serve her.
    Senator Macaca is making a comeback in Virginia and the great Harold Ford is losing ground in Tennessee and Tennessee hasn’t elected a Democrat to the Senate in over 16 years. We’ll see how it all plays out against the history of expectation.
    The ultra-mega-arch conservatives love Rove and his redistricting successes and they’re all in the power majority together — so it doesn’t matter what the rest of us think if Rove can successfully please those narrow masters and keep their majority game in power.

  3. I’m worn out by everything in the news and I’m usually a political junkie.
    I predict voter turnout will be very low — especially in my district because there’s nothing really contested.
    The same local pols get elected year after year because they have the money and patronage power of their machine that keeps people from ever being able to mount an effective challenge.
    Fortunately, our U.S. Senate and House candidates are exceptions to flawed local leaders. And, our Congressional candidate has been pushing some reluctant local leaders to start thinking about good government initiatives designed to keep public money out of public officials’ pockets.
    But, the national leaders won’t ever be voted out of office in the foreseeable future because they have seniority and the incumbents’ electoral advantages.
    People around here have pretty much given up thinking about major change because there’s only one party in charge in my county. Some people will put up yard signs to show their approval of the power players, but then they skip the actual voting process.
    From NWI.com:

    The latest indictments feed the culture of cynicism that prevents Gary from moving forward.
    The city has plenty of problems, no doubt. Crime is at unacceptable levels, even if Gary is no longer the Murder Capital of America.
    Efforts to improve education weren’t helped by a teachers’ strike provoked by a school board seemingly more interested in asserting its control than in working with its employees to move forward.
    And the rows of vacant storefronts along Broadway offer stark testimony to the failure of efforts by the GUEA and others to reverse the city’s decades-long economic downturn.
    Every time a project like the GUEA is revealed to be a fraud and the scandal touches someone like Roosevelt Powell — “a good citizen and a man of integrity,” according to Mayor Rudy Clay — it becomes that much harder to gain traction for change.

    Luckily, since there’s never any chance that a GOP candidate can win in my area, there isn’t much politicial mudslinging, despite all of the scandals. When a popular defense in federal court is “everyone else is doing it,” it doesn’t make sense to rock the boat.
    In Illinois, things are different as far as the media campaign is concerned.
    I’m glad I have access to the satellite so I can skip all of the election commericals that are playing in the Chicago media market. It’s a bad election season when politics was something I used to enjoy watching, but now try to avoid by keeping away from the local news.
    All of the bickering between the political parties does nothing but turn off regular people who have enough things to worry about.
    When everyone running is alleged to be connected to criminals, schemes, scams, and other wasteful uses of public funds, it makes most people want to avoid having anything to do with any of the pols.
    From NWI.com:

    I’ve been watching the Illinois campaign ads in the various media and have come to the conclusion that the only choice we have is to vote for the least objectionable candidate. …
    (T)he candidates have turned … to the fine art of slinging mud, and as the late Calumet City Alderman Al Wisowaty was fond of saying, “He who throws dirt loses ground.”
    Ever since his campaign four years ago as a reform candidate, Blagojevich has been playing the George Ryan card and has taken every opportunity to show voters that Topinka has worked for years hand-in-glove with that now disgraced administration.
    The problem for Blagojevich is that virtually no Democrats can work up any enthusiasm for him, not even his own father-in-law, Chicago Alderman Dick Mell. And now one of Blagojevich’s major fundraisers and closest friends, Chicago businessman Tony Rezko, has been indicted on federal corruption charges relating to kickbacks from firms that wanted work from the state.

    All politics is local and when all of the local politicians are bad, it doesn’t help to get people to the polls, especially if it is cold, rainy or snowy.

  4. A S —
    We do have a new chill on the American dawn. There’s nothing to stop a president now from permanently shutting up those who appear to be a threat to national security forever and without having to answer to anyone for the imprisonment be it the courts or the court of public opinion.

  5. Nothing to stop a president, EXCEPT the end of his term.
    But the voice of the people must be heard now for the benefit of the generations to come so that another leader will not emerge to re-establish phone taps etc. establish in this administration and sqaush free thinking and the ability to openly express it.
    *That last line on my previous post should have the word “needing” between the words “silence” and “help”.

  6. Please forgive the atrocities against the English language in my comments and do the best you can to decipher them. I’m pretty out of it today.

  7. Chris —
    I agree the in-power majority have done a fine job with creating a powerful force that cannot be easily or democratically removed from its inbred power structure.
    The writ of habeas corpus is dead after 200 years and you didn’t even mention it in your fine and well-researched reply even though habeas corpus was mentioned nine times in my article!
    The most effective thing the current administration did in regards to the Iraq war was to keep our interest out of it. They did not show us coffins or funerals or protesters. We don’t really independently know what the Iraqi people think of the war. We have only the power majority telling us what’s happening and what to think and we are not allowed to wonder or question or ponder about the war because then we are not proper believers in the fight against terrorism. Instead of truths we are fed sound bites and semiotic staging suggesting success and all the while there is no substance behind the smile and the shoeshine.

  8. A S —
    The problem with the death of habeas corpus is that its loss will live long beyond the current president just as it took 42 years to rectify –- and pay restitution and apologize for — Roosevelt’s dreadful Executive Order 9066:

    On February 19, 1942, soon after the beginning of World War II, Franklin D. Roosevelt signed Executive Order 9066. The evacuation order commenced the round-up of 120,000 Americans of Japanese heritage to one of 10 internment camps—officially called “relocation centers”—in California, Idaho, Utah, Arizona, Wyoming, Colorado, and Arkansas….
    In 1988, the U.S. Congress passed legislation which awarded formal payments of $20,000 each to the surviving internees—60,000 in all. This same year, formal apologies were also issued by the government of Canada to Japanese Canadian survivors, who were each repaid the sum of $21,000 Canadian dollars.


  9. Here’s an interesting report about voter apathy from George Mason University.
    “Why Do So Many Americans Hate Politics?”

    Our Vanishing Voter surveys indicated that a cumulative effect of negative politics, campaign after campaign, is a reduced interest in elections.
    Attack politics wears some people down to the point where they simply don’t want to hear about campaigns.
    On the average day during the 2000 campaign, Americans who believed that negative messages are a defining feature of U.S. elections were less likely to discuss the campaign and to pay attention to news about it.
    The differences were not large, but they occurred across the course of the campaign. Day in and day out, those who believed campaigns are akin to mud wrestling were less attentive to the campaign, even when levels of education and income were controlled.

    I’m not going to discuss the merits of the instant legislation that is the basis of this post because I need to look at it in further depth than I have at the moment. I’ll probably read up on the Military Commissions Act of 2006 some time soon, but I also assume a great deal of people won’t have the time, inclination, interest, or will to even learn anything about it because of the busy schedules many people endure in their daily lives.
    Even serious policy differences and debate about politics is starting to be viewed in the light of political mudslinging.
    My mental filters are set pretty low — I always like a good debate since I might learn something and change my mind. But, many people have set their “filters” very high. There are some people will will view any legitimate policy difference the same way as a political mudslinging attack.
    I think some of the fringe efforts of some political supporters of all sides come to define the tone debate in the minds of many in our country.
    A lot of debate from each side is dismissed automatically — caught in the mental “spam filter” set to filter out political viewpoints that don’t match those held by the listener.
    Many people in “Red” states dismiss criticism of the president as being more of the “hate speech” that comes from the “blue” side. “Those people always hate everything the president does, so it’s just more of the same old same old. Plus, they don’t have any ideas of their own.”
    People in “Blue” states don’t believe anything that comes from the “Shrubster” and automatically filter out everything from the “red” side. “They’re up to no good and are just trying to trick us with their Rovian tactics. Plus, everything the GOP is doing is stupid, will ruin the country, is designed to help Halliburton and connected folks, etc. ”
    There isn’t much debate in today’s politics, and the serious debate that does happen, gets drowned out in the “horse race” coverage that dominates the 24-hour news cycles and people’s personal ideological filters.
    It’s easy to see how people get worn down and apathetic when there seems to be no reasonable choice — just a decision that is designed to prevent the greater evil from gaining power.
    There won’t be any change — either way — if the majority of people are so confused or disgusted that they don’t bother to show up to cast their votes.

  10. Chris —
    We look forward to your critical response as a practicing attorney to the loss of habeas corpus.

    Immediately after Bush signed the Act into law, the Justice Department notified the U.S. Court of Appeals for the District of Columbia that the Court no longer had jurisdiction over a combined habeas case that it had been considering since 2004. A Justice Department notice dated the following day listed 196 other pending habeas cases for which it made the same claim.


  11. Hi David,
    Just for curiousity, I took a look at Wednesday’s local newspaper (The NW Indiana Times) to see their coverage of the Military Commissions Act of 2006. I remember reading it without thinking too much about the bill.
    The wire service article was buried in the back of the first section of the paper on page A19. The headline stated something about a new anti-terrorism bill. The article had a quote from the President saying that this was the most important tool in the war against terror. There were some quotes from Democrats saying this was the worst bill in history.
    In today’s environment, it’s easy to overlook these types of things — especially when most people are working and doing their daily routines.
    Also, it’s easy to dismiss quotes from the opposing party that read like every other statement that has been made about the president. If the Democrats would have said that they love President Bush, I would have noticed. A quote or two saying he is horrible seemed like more of the same old same old.
    I’m sure most of the people in my area who get the newspaper missed the story. To be fair, the local paper is geared more toward local issues. But, most people don’t read the New York Times. And, most people don’t tune into the cable news “talking head” shows either.
    I still haven’t had time to look at the bill to make a judgment about it yet. I could take the “talking points” approach, but since this bill has been called one of the “worst” threats to civil rights, it probably deserves more than the cursory examination and my declaration that it’s the right thing to smash the will of the enemy.
    I don’t really know what to think without actually digging into it and reading some of the commentary about it.
    The definitions are going to be important. Also will be the provision’s scope.
    Is it limited to people defined as enemy combatants who are not U.S. citizens and who are outside of the United States?
    Can U.S. citizens fall under the scope of the legislation?
    Would it apply to someone caught in the U.S., as opposed to outside of the U.S.?
    There is some precident that people outside of the U.S. who aren’t U.S. citizens aren’t entitled to the protections of the U.S. Constitution. That’s why ICE and Coast Guard always like to grab people before they can land their boats in the U.S. because they don’t need to have proceedings to exclude the people from the U.S. (Airports are the same way — you aren’t technically inside of the U.S. before you’ve passed customs. That way, ICE can put people back on planes and send them home without hearings).
    Too bad most people won’t pick up on any debate — pro and con — because they’ve tuned out of anything to do with politics.
    I trust the public and know that they’d normally be interested in these types of things, but all major parties have done a good job of desensitizing them to the finer points of public policy in our mudslinging, sound bite political season.

  12. Chris —
    Again, we look forward to your analysis concerning the loss of habeas corpus and we’re a little surprised you haven’t been following its demise more closely!
    Human Rights Watch has this to say about the new Military Commissions Act 2006:

    Of primary concern, the legislation bars detainees from filing suit via the writ of habeas corpus to challenge the legality of their detention or to raise claims of torture and other mistreatment. The legislation also includes an overly broad definition of “combatant” that, if generally accepted, could subject civilians who provide virtually any kind of support to an armed group, including far from any battlefield, to military detention and trial. Human Rights Watch is also concerned that the military commissions established do not meet the fair trial provisions required by the Geneva Conventions and human rights law.

    And this…

    The MCA expands the definition of “combatant” to include those who have “purposefully and materially” supported hostilities against the United States, even if they have not taken part in the hostilities themselves, and even if they are arrested far from the battlefield. This turns ordinary civilians – such as a mother giving food to her combatant son, an individual who sends money to a banned group, or a U.S. resident who commits a criminal act unrelated to armed conflict – into “combatants” who can be placed in military custody and hauled before a military commission.


  13. Quick overview of the Act:
    The Military Commissions Act of 2006 doesn’t apply to U.S. Citizens, so it doesn’t take away habeas corpus rights of U.S. Citizens using the plain meaning of the statute.
    From Wikipedia:

    Section 948c of 10 U.S.C., as added by the Act, states, “Any alien unlawful enemy combatant is subject to trial by military commission under this chapter” – with “alien” defined in section 948a(3) as “a person who is not a citizen of the United States”. The Act does not specify any provisions for trying unlawful enemy combatants who may be American citizens.

    See also S. 3930.
    For a person to fall under the scope of the act, they have to be someone 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 …” See section 948(a)(1)
    The jursidication is limited to alien unlawful enemy combatants. Section 948d.
    No person shall be compelled to testify against himself or herself. Section 948r(a).
    “A statement obtained by use of torture shall not be admissable in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.” Section 948r(b), emphasis added.
    Sections 948r(c) and 948r(d) deal with use of statements obtained by coercion and give tests for the judge.
    See 948r(d):

    TREATMENT ACT OF 2005.—A statement obtained on or after
    December 30, 2005 (the date of the enactment of the Defense
    Treatment Act of 2005) in which the degree of coercion is disputed
    may be admitted only if the military judge finds that—
    ‘‘(1) the totality of the circumstances renders the statement
    reliable and possessing sufficient probative value;
    ‘‘(2) the interests of justice would best be served by admission
    of the statement into evidence; and
    ‘‘(3) the interrogation methods used to obtain the statement
    do not amount to cruel, inhuman, or degrading treatment
    prohibited by section 1003 of the Detainee Treatment Act of

    The defendant can defend himself or herself and can have counsel:
    Section 949a(b)

    ‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Notwithstanding
    any departures from the law and the rules of evidence in trial
    by general courts-martial authorized by subsection (a), the procedures
    and rules of evidence in trials by military commission under
    this chapter shall include the following:
    ‘‘(A) The accused shall be permitted to present evidence
    in his defense, to cross-examine the witnesses who testify
    against him, and to examine and respond to evidence admitted
    against him on the issue of guilt or innocence and for sentencing,
    as provided for by this chapter.
    ‘‘(B) The accused shall be present at all sessions of the
    military commission (other than those for deliberations or
    voting), except when excluded under section 949d of this title.
    ‘‘(C) The accused shall receive the assistance of counsel
    as provided for by section 948k.
    ‘‘(D) The accused shall be permitted to represent himself,
    as provided for by paragraph (3).

    Rules regarding defense counsel, Section 949c(b)

    ‘‘(b) DEFENSE COUNSEL.—(1) The accused shall be represented
    in his defense before a military commission under this chapter
    as provided in this subsection.
    ‘‘(2) The accused shall be represented by military counsel
    detailed under section 948k of this title.
    ‘‘(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;
    ‘‘(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.
    ‘‘(4) Civilian defense counsel shall protect any classified
    information received during the course of representation of the
    accused in accordance with all applicable law governing the protection
    of classified information and may not divulge such information
    to any person not authorized to receive it.
    ‘‘(5) If the accused is represented by civilian counsel, detailed
    military counsel shall act as associate counsel.
    ‘‘(6) The accused is not entitled to be represented by more
    than one military counsel. However, the person authorized under
    regulations prescribed under section 948k of this title to detail
    counsel, in that person’s sole discretion, may detail additional military
    counsel to represent the accused.
    ‘‘(7) Defense counsel may cross-examine each witness for the
    prosecution who testifies before a military commission under this

    Defendants are protected against double jeopardy in Section 949h.
    Defense counsel may obtain evidence and witnesses. See Section 949j.
    Section 949k provides for a lack of mental capability defense.
    Cruel and unusual punishment is prohibited:

    ‘‘§ 949s. Cruel or unusual punishments prohibited
    ‘‘Punishment by flogging, or by branding, marking, or tattooing
    on the body, or any other cruel or unusual punishment, may not
    be adjudged by a military commission under this chapter or inflicted
    under this chapter upon any person subject to this chapter. The
    use of irons, single or double, except for the purpose of safe custody,
    is prohibited under this chapter.

    Section 950 provides for review of decisions.
    Civilian judicial review is allowed. See Section 950g.

    ‘‘§ 950g. Review by the United States Court of Appeals for
    the District of Columbia Circuit and the Supreme
    ‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided
    in subparagraph (B), the United States Court of Appeals
    for the District of Columbia Circuit shall have exclusive jurisdiction
    to determine the validity of a final judgment rendered by a military
    commission (as approved by the convening authority) under this

    The President must approve any execution of a death sentence. See Section 950i(b). A final judgment must have been made, including appeal (or decision not to appeal) to the US Court of Appeals for the District of Columbia Circuit, before the death penalty can be carried out. See Section 950i(c).
    Section 950v details the crimes that are punishable by the military commissions. The crimes aren’t “garden variety crimes” that most people will commit, including using poison or committing terrorism. Section 950v(25)(B) defines “material support.”
    Here are the habeas corpus provisions. See Section 7:

    (a) IN GENERAL.—Section 2241 of title 28, United States Code,
    is amended by striking both the subsection (e) added by section
    1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
    (e) added by added by section 1405(e)(1) of Public Law
    109–163 (119 Stat. 3477) and inserting the following new subsection
    ‘‘(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.’’.
    (b) EFFECTIVE DATE.—The amendment made by subsection (a)
    shall take effect on the date of the enactment of this Act, and
    shall apply to all cases, without exception, pending on or after
    the date of the enactment of this Act which relate to any aspect
    of the detention, transfer, treatment, trial, or conditions of detention
    of an alien detained by the United States since September 11,

    I don’t really have a problem with the act as it is written.
    It doesn’t apply to citizens, aliens, and others who aren’t involved in terror activities.
    It doesn’t apply to members of the opposing military forces.
    The legislation specifically targets people who kill and use terror methods to further their cause.
    American citizens have nothing to worry about with this new law because it does not apply to them. Also, “alien unlawful enemy combatants” probably have less Constitutional protections as a result of their status than do regular aliens and U.S. Citizens. See Slate’s “Do Noncitizens Have Constitutional Rights?”
    I think most people aren’t in an uproar because they realize the bill doesn’t pertain to them.
    There’s no sympathy for “alien unlawful enemy combatants.”

  14. Chris —
    It’s interesting the only hard link you provide for investigation is from 2001 and an old Slate magazine article.
    The Act does allow for American citizens to be caught in its web and I toss back at you as proof the last line from your Wikipedia quote:

    The Act does not specify any provisions for trying unlawful enemy combatants who may be American citizens.

    Why isn’t it specified? Now most legal scholars I’ve read believe the safety valve for citizens is “Hamdan vs. Rumsfeld” as recently handed down by the Supreme Court, but why not use explicit and clear language in the MCA concerning American citizens? Why not be clear citizens are covered unless, that is, you want to hold open the option later to uncover them.
    There is no doubt habeas corpus is no longer a blanket right for the accused and is now conveniently and narrowly applied and even permanent residents of the United States are not promised habeas corpus protection.
    You also quoted the following in what I must assume, based on your comment, supports your contention that habeas corpus is protected:

    ‘‘(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.

    I read that paragraph as quite clearly removing habeas corpus.
    Here are some others who are smarter than me and better vested in the law with their analysis of the MCA.
    Findlaw Analysis:

    Under the first prong of the provision, an “unlawful enemy combatant” is defined as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. It would cover someone who provided funds to al Qaeda or the Taliban knowing that the funds would be used to fight against the U.S. (including, given the bill’s apparent understanding of terrorism as a form of hostilities, funds that are used for terrorist attacks in the U.S.).
    The material support element of the first prong of the definition – which covers people who have purposefully and materially supported hostilities – exceeds the traditionally-accepted legal definition of combatant. Under international humanitarian law – the laws of war – combatants are people who directly participate in hostilities. People who merely support hostilities – such as cafeteria workers at a military base – are considered civilians. Unlike combatants, they cannot be deliberately targeted for attack.
    The first prong of the bill’s definition is unjustifiably broad. But the second prong of the definition is far worse. It appears to delegate to the President or Secretary of Defense unrestricted power to deem anyone an unlawful enemy combatant. All it requires is that a “competent tribunal” like a Combatant Status Review Tribunal (CSRT) make the determination. (CSRTs are the administrative boards that review detentions at Guantanamo.) The bill itself says nothing about the substance of the criteria that the tribunal should apply.
    The definition as a whole is thus so radically overbroad that one is tempted to attribute its breadth to a drafting error (perhaps it was originally written as a two-part test, not two independent prongs). At any rate, as written, the provision should be struck down as a blatantly unconstitutional delegation of power. And note, in assessing the provision’s scope, that the definition of “unlawful enemy combatant” is not limited to aliens (even though U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions).

    And this from Findlaw:

    On nearly every issue, the MCA gives the White House everything it sought. It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens–including permanent residents whose children are citizens–that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
    One can only guess at why Collins, Graham, McCain, and Warner so utterly capitulated to the White House, but the impact is clear. Psychologists describe the phenomenon of “anchoring,” in which one of many possible positions on a question “anchors” people’s views about the right answer to the question. If, for example, a person is asked how much money a car is worth, and the figure of $20,000 is suggested, he or she is likely to give an answer near $20,000, even if the car is worth a lot more or a lot less. …
    Under the terms of the MCA, then, the government could declare a permanent resident alien–including someone who has been residing lawfully in the United States for decades–to be an enemy combatant, and lock him up, potentially forever. That alien–who could be your neighbor–would never have an opportunity to challenge his detention or treatment in a U.S. court.
    To be sure, if the government provides someone declared to be an enemy combatant with a combatant status review tribunal (CSRT), then the DTA authorizes judicial review of that determination. And the MCA does amend the DTA for the better in one important respect: Whereas the DTA only authorized civilian judicial review of CSRT determinations for detainees at Guantanamo, under the MCA, a person held by the United States pursuant to a CSRT anywhere in the world can appeal the CSRT’s ruling to a civilian federal court. But, there is no statutory requirement that the government ever utilize a CSRT-and absent a CSRT ruling, there is no access to civilian court.
    Thus, under the terms of the DTA as amended by the MCA, there would be no access to a civilian court whatsoever, even if the detainee were held within the United States, so long as the government determined that he or she were an unlawful enemy combatant by some means other than using a CSRT. And at least to that extent, the MCA should be judged unconstitutional as a de facto suspension of the privilege of the writ of habeas corpus. Article I, Section 9 permits Congress to suspend the privilege of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” Public safety may require that the writ be suspended in an active war zone where courts cannot function. But the DTA and MCA apply everywhere.
    Accordingly, should the Administration hold aliens within the United States, the courts would likely find that they are entitled to habeas corpus, notwithstanding the terms of the DTA and MCA. Whether there is a right of aliens held outside the United States to habeas corpus is not entirely clear. That question may be resolved by a recent lawsuit filed on behalf of prisoners in Afghanistan.

    From “The Washington Times” Op/Ed on Oct. 9, 2006:

    The Military Commissions Act closes our federal courts to any habeas corpus petitions on those conditions of confinement. This is despite the Supreme Court’s instructions this June to the president and Congress that the military commissions dealing with these prisoners provide them with “all the judicial guarantees recognized as indispensable by civilized persons.” Habeas corpus, eminently civilized, requires that the government demonstrate it is holding detainees lawfully.
    But this radical new law goes much further than revoking habeas in showing the world — most importantly, our allies — the fragility of our vaunted rule of law, the bedrock of our constitutional republic.
    This legislation not only strips the habeas rights of any alien designated as an unlawful enemy combatant, including permanent alien residents of the United States, but it also greatly and loosely expands the very definition of “enemy combatant.” Current case law defines an enemy combatant as someone engaged in armed conflict with this country, but now it also includes anyone who “purposely and materially” supports hostilities against the United States. Such alleged enemies can be picked up by the Defense Department and held without charges indefinitely — and without recourse to our courts.
    Ari Shapiro, National Public Radio’s persistently astute and reliable reporter on our justice system, noted on Sept. 28, quoting concerned immigration organizations: “Imagine you’re somebody who’s been living in the United States for 30 years, married to an American citizen. You give money to an Islamic charity and the United States determines that that charity supported terrorism. That’s material support (in this new law). You can then be declared an unlawful enemy combatant, taken to a secret prison and…potentially never be heard from again, these (immigration rights) groups say.”

    Habeas corpus should not be selectively applied by the United States.
    We either have habeas corpus for everyone accused of a crime — including our enemies and terrorists and others who seek to do us harm — or we deny it to everyone, including citizens.
    To selectively apply and enforce rights — and to narrowly interpret the legal process and to militarize the judicial system only for some — destroys each and everyone one of us including the legally recognized, and maybe protected and maybe not protected, “Citizen of the United States.”


    On September 28, the Senate voted 51-48 against an amendment proposed by Senator Arlen Specter to the Military Commissions Act which would have preserved the right of habeas corpus. Center for Constitutional Rights Executive Director Vincent Warren issued the following statement in response:
    “With the defeat of the Specter Amendment to the Military Commissions Act, Congress has sacrificed any semblance of a meaningful balance of power. Congress is now rubber-stamping a bill that was written by the President which gives the President expansive power to detain without judicial oversight. If the Military Commissions Act is passed, it will grant the President the privilege of kings, allowing him to imprison any critics as alleged ‘enemy combatants,’ never to see the inside of a court room or to have the chance to challenge their detention or their treatment. What would we say if another country passed a law making it legal to snatch U.S. citizens and detain them indefinitely?
    “Under this legislation, our clients at Guantánamo and hundreds of others detained by the U.S. around the world may remain locked up for the rest of their lives without ever having a chance to prove their innocence. Congress will be forfeiting one of the founding principles of the democratic tradition, and one of the most basic checks on executive power. Since the nation’s founding, the writ has been suspended only four times-each only briefly and in a territory that was an active combat zone. This bill would suspend it for all non-citizens inside or outside of the U.S. – even if they have not been charged with any crime. This unprecedented and expansive suspension of habeas corpus is utterly unconstitutional, and we will challenge it.”


  16. Hi David,
    The commentary on the legislation is my own — done in between doing other things at work and in a short amount of time. 🙂 That’s why there weren’t any links to any place else. The link to the GPO’s PDF file of the bill was in my previous link, so I omitted it. The Wikipedia link was in a previous post, if I’m not mistaken.
    I would have done more work on the nonimmigrant vs. citizen vs. immigrant Constitutional guarantees, but I had a meeting at 3 p.m. CDT, so I didn’t have a lot of time to do dig really deep.
    I do expect the law to be narrowly limited to the “class” defined as “alien unlawful enemy combatants,” so I’m not worried about habeas corpus rights of U.S. Citizens, immigrants, and aliens who aren’t unlawful enemy combatants.
    If I thought Bush was going to pull a Hugo Chavez and declare himself “president for life” I might be more apprehensive. If the troops were mustering in preparation for martial law, I wouldn’t be writing this post right now and would probably be driving my American car to the place where it was born: Windsor, Canada. 🙂
    Or should I be driving my Japanese car to the place it was born in Georgetown, Kentucky? 😉
    Writes Andrew Cohen on the Couric & Co. blog:

    But one theme struck me as particularly interesting. Over and over again, Gonzales was forced to explain that the most onerous provisions contained in the Military Commissions Act of 2006 does not on its face apply to U.S. citizens. And, indeed, this is true. The suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad.
    So while the new law dramatically reduces the legal rights and remedies of resident aliens, it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted. That’s the good news. The bad news is that the Bush Administration, on at least two occasions before the new law was passed, tried to suspend the writ of habeas corpus for U.S. citizens. The men, Jose Padilla and Yaser Esam Hamdi, both were designated as “enemy combatants” by the White House and held for years in military custody without charges or due process before the U.S. Supreme Court essentially bailed them out.
    So while there is nothing in the Military Commissions Act that makes it easier for the White House to point an accusatory finger at a U.S. citizen, label that person a terrorist and “enemy combatant,” and then suspend his or her rights, there is nothing in that Act that makes it harder, either.

    I don’t think it’s a great thing that terrorists who aren’t U.S. Citizens don’t get habeas corpus rights that most people in America are entitled to — I’m an attorney, so it’s always good to make sure that there are always ways to ensure work for the brothers and sisters in the profession — but I’m not packing my bags and applying for a Canadian immigrant visa either.
    There is precident for the suspension of habeas corpus of U.S. Citizens. See Ex Parte Merryman which ruled against President Lincoln’s unilateral suspension of the privilege of the writ because only Congress can pass legislation suspending the writ.
    If you don’t like the law, that what Nov. 7th is for. Throw the bums out and get some in who will do what you want them to do. Make sure to bring your friends and neighbors to the polls so that they can vote, since voter turn out might be low this year.
    I’m voting in the upcoming election — don’t tell anyone — for the guy who promises to open up more of Lake Michigan’s lakefront to the public and brings in millions in highway money to the district for our yearly roadwork projects. He also voted against HR 6166 the Military Commissions Act of 2006, the House companion to the Senate bill that was subsequently approved.
    Of course, I’m going to vote for our Senator who also voted in favor of S 3930 the Military Commissions Act of 2006. He seems to do well in reducing the numbers of nuke floating around and has enlisted Sen. Obama in the effort.
    I’d be tempted to vote for more Democrats, but the ones around here always seem to be involved in some strange stuff that ends up in elected officials going to “Club Fed.”
    Maybe someone should suspend habeas corpus for our corrupt pols? 😉
    Just kidding.

  17. Hi David,
    I got caught in moderation. Probably because of too many links?
    I’m not in support of the bill — that’s probably why I was ambivalent about writing about it earlier today. But, unless people get the word out to their friends — no matter what side they support — there won’t be any changes to the law.

  18. I noticed one thing that is striking in the “Dorf” article in Findlaw.
    The President often has “signing statements” that he says allow him to interpret the law any way he wants to interpret it, so there is no way of knowing how the law will be interpreted.
    I’m thinking I’ll just be a hybrid libertarian that will accept free health care when big business gets Congress to relieve them of that expense.

  19. Chris —
    Yes, caught in moderation! That’s better than Akismet, though. Too many links, I think. Don’t let that stop you in the future.
    It’s so interesting that some believe the fact that the MCA *doesn’t* mention American citizens means they are protected by default — as if they had some sort of inalienable rights or something — and that, to me, is the ultimate irony as habeas corpus is now a protection removed from the certain accused.
    I really liked the Byrd amendment to the MCA that did not get included:

    Senator Byrd of West Virginia came to the floor to offer an amendment to the Military Commissions bill. This amendment would require a 5 year sunset on any presidential military commissions enacted under this bill. He explained that this amendment would ensure that Congress retains its power of oversight, and that it acts as a check on Executive power. He stated his concern that some members of the Senate were trying to push the Military Commissions bill through hastily in an effort to get home to campaign.

    Here’s how the actual amendment read in the record:

    SA 5104. Mr. BYRD (for himself, Mr. Obama, Mrs. Clinton, and Mr. Levin) proposed an amendment to the bill S. 3930, to authorize trial by military commission for violations of the law of war, and for other purposes; as follows:
    On page 5, line 19, add at the end the following: “The authority of the President to establish new military commissions under this section shall expire on December 31, 2011. However, the expiration of that authority shall not be construed to prohibit the conduct to finality of any proceedings of a military commission established under this section before that date.”.


  20. Chris —
    Speaking of signing statements — which are confusing and vague, but important to notice and argue — here’s a good Findlaw article about its current abuser:

    Generally, Bush’s signing statements tend to be brief and very broad, and they seldom cite the authority on which the president is relying for his reading of the law. None has yet been tested in court. But they do appear to be bulking up the powers of the presidency. Here are a few examples:
    Suppose a new law requires the President to act in a certain manner – for instance, to report to Congress on how he is dealing with terrorism. Bush’s signing statement will flat out reject the law, and state that he will construe the law “in a manner consistent with the President’s constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”
    The upshot? It is as if no law had been passed on the matter at all.
    Or suppose a new law suggests even the slightest intrusion into the President’s undefined “prerogative powers” under Article II of the Constitution, relating to national security, intelligence gathering, or law enforcement. Bush’s signing statement will claim that notwithstanding the clear intent of Congress, which has used mandatory language, the provision will be considered as “advisory.”
    The upshot? It is as if Congress had acted as a mere advisor, with no more formal power than, say, Karl Rove – not as a coordinate and coequal branch of government, which in fact it is.
    As Phillip Cooper observes, the President’s signing statements are, in some instances, effectively rewriting the laws by reinterpreting how the law will be implemented. Notably, Cooper finds some of Bush’s signing statements – and he has the benefit of judging them against his extensive knowledge of other President’s signing statements — “excessive, unhelpful, and needlessly confrontational.”


  21. Chris —
    I agree — sunset the Act and everybody wins — Bush gets his red meat issue for the Midterms to please his evangelical base and the entire nation wins as it quietly fades away into the dustbin in 2011.

  22. Please understand, I have never voted for a Democrat in my life.
    The most present and potent enemies of the United States of America and the Constitution are not Al Qaeda, or Muslim, or Arab, or Chinese, or North Korean, or Iranian.
    The enemies of our Constitution are Neocon Fascists and their collaborators in both parties. Their names will live in infamy:
    Bush, Cheney, Rumsfeld, Rice, Wolfowitz, Feith, Rove.
    The Gang of Seven.
    Vigilance is needed to safeguard the elections this Noveber. Volunteer at your local polls to protect the Constitution from usurpation.
    In the next few weeks, pay no heed to warnings of imminent terror attacks.

  23. If the national house isn’t cleaned, our local government may end up with some changes this election season. Some more local despots may be brought to justice.
    From the Post-Tribune:

    U.S. Attorney Joseph Van Bokkelen is expected to announce more indictments at the Federal Courthouse in Hammond on Monday.
    The charges, according to a press release, will be part of Van Bokkelen’s “Operation Restore Public Integrity.”

    Always watch the local and national papers on Saturday for bad news from the government since that’s when major stories are usually released.

  24. Hi Peter!
    Welcome to the blog. I appreciate your comment. When you have a one-party system of government, the requirement on the news media to investigate and report becomes even more important. The news media completely joined the power ranks on the War and in the misery at home and we are all worse for the wear.

  25. I’m just curious if anyone has read the actual bill? no where in the legislature does it threaten the rights of citizens. aliens (legal or illegal) yes. but not citizens. I’m not agreeing with the bill…i don’t understand how the politikos can deny aliens habeus corpus yet provide them with medical care and an education….but that’s a different tangent.
    I see it as a step in the general direction, as a threat to be dealt with, but in no ways does it give the government the right to violate citizen’s rights.

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