WON'T != CAN'T

The Military Commissions Act Blues (with apologies to Don McLean)

Bye-bye to our old Bill of Rights
Heard a lawyer in the foyer: "How'd we fall from such heights?"
With Congress's twits helping turn off the lights,
Our King George declares that "Habeas bites!"

Congratulations America, with the president's signing of the Military Commissions Act of 2006 we are now in a Habeas Corpus Optional zone. This Act allows the president (or a tribunal selected by him) to disallow a writ of Habeas Corpus for any "unlawful enemy". While this is bad enough, there is nothing in the Act that prevents any US citizen from being declared an unlawful enemy. Without Habeas Corpus, the Bill of Rights is pretty much meaningless. What's a right to free speech if you can be thrown into jail without a trial? You won't have to ever worry about "pleading the fifth" because, you guessed it, there'd be no trial. Get the picture?

Conservative and Republican pundits have claimed that the president wouldn't do that, but there's a huge difference between wouldn't and couldn't. To phrase it more simply with a little piece of C-like computer code:

WON'T != CAN'T

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Have you actually read the act, specifically 948b Section (a)?

The act applies to "alien unlawful enemy combatants" and defines "alien" as "a person who is not a citizen of the United States" (948a. part 3 in "Definitions"). I agree that that's bad enough and that it's a scary law (if you're a perfectly law-abiding permanent resident on track to citizenship in this country, you could be utterly screwed and who knows what modifications to this act might come next that could affect U.S. citizens), but the whole claim that the act targets U.S. citizens seems quite overblown.

..the whole claim that the act targets U.S. citizens seems quite overblown

Make that "the whole claim that the act could be so easily used against U.S. citizens seems quite overblown." (Hit "post" too soon.)

While I have not read the entire act, I did read the very section to which you refer. While part 3 does in fact define "alien" as a non-US citizen, the act refers to "unlawful enemy combatant" which is not necessarily defined as an alien:

(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.

So, being called an "unlawful enemy combatant" by the tribunal would seem to be sufficient. Granted, some sections specifically refer to "alien unlawful enemy combatant", but I understand there are possible openings elsewhere. Certainly, I am not alone in this opinion as I have heard similar comments from law professionals from other sources.

More importantly, once you allow anyone to be held without trial, all other laws become irrelevant. Think about it. In order to contest your treatment on the grounds that you're not an "alien" unlawful enemy combatant, you have to see a judge. But if they government simply says that you're an "alien" unlawful enemy combatant, they are utterly exempt, under this law, from having to prove that you're an "alien" unlawful enemy combatant.

First, they came for the Jews.

By Bill from Dover (not verified) on 18 Oct 2006 #permalink