Reconsidering the military bill

Not to be snarky (really), but aren't you a reporter? If the media can't be bothered to look up the minutae of a recently passed law of extreme public interest, why are they around? You probably have other tasks on your plate, Rod, but why aren't your colleagues answering this question for you?>

That's my impression of the bill. It actually appears, based on my quick skimming, to say that any alien, resident in the US or not, may be designated an unlawful enemy combatant and detained indefinitely. If so, however, it's likely that that provision will be construed more narrowly in the courts. There's a good bit of case law holding that habeas rights for resident aliens are constitutionally protected; they could not be deprived of habeas without a formal suspension of the writ, which it is unlikely this bill is.

Given this very likely narrowing of the bill, I can't figure out why people are so worked up about this aspect of it. It seems to me that it's essential we get the initial determination right--i.e., is the person really an unlawful combatant--but that certainly doesn't necessarily require recourse to federal courts. After that determination has been made by a competent tribunal, I see nothing wrong with tossing them in Gitmo and tossing the key somewhere in the Caribbean. Under the traditional laws of war, they would have been summarily executed anyway; even if we find that practice barbaric (though until recently, it was a feature of "civilized" warfare), I see no reason why they warrant particularly gentle treatment. And until someone explains to me why unlawful combatants should receive more favorable treatment than POWs (i.e., lawful combatants), I'll obstinately hold to this position.>

"I'm sitting at home on a Saturday, reading lots of confusing and contradictory stuff about this bill."

Does none of it quote the relevant parts of the bill or link to an online text?>

Mark, thank you very much for bringing the Pitt essay to light.>

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Congress may give the president the power to lock up almost anyone he thinks is a terror threat.

By Bruce Ackerman, BRUCE ACKERMAN is a professor of law and political science at Yale and author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."
September 28, 2006


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. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against 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.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an "enemy combatant" upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.
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">http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail>

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This bill concerned "the writ of habeas corpus [which] is the fundamental right for the political system originally envisioned by the founders of the United States." This bill concerned the ultimate foundation of individual liberty. In the most important and deepest sense, this bill was the ball game.
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">http://powerofnarrative.blogspot.com/2006/09/thus-world-was-lost.html>