Wednesday, November 07, 2007

Blogging the Military Commissions Act

I would not have voted for the Military Commissions Act in the form that it passed Congress. One of the problems with the law of the war on terror is that we can't really frame it as exactly like war or exactly like law enforcement. There are ways in which it is like both and we need to develop a hybrid legal regime in response. In attempting to do this, I think the administration has, from time to time, missed the mark.

But here in Wisconsin's political blogosphere, I have noted that a few of our friends on the left side of the virtual divide have repeated the claim that the Military Commissions Act repeals habeas for citizens and non-citizens alike.

Lots of people on the left say this, but it is untrue. In fact, it is not even arguably true. The MCA does have an extremely broad definition of "unlawful enemy combatant" that could be applied to citizens. I don't like that definition at all.

But ... the definition is adopted for the purposes of the Act and the Act provides for trial by military commission and the suspension of habeas for "alien enemy combatants." In other words, the Act limits these operative provisions to people who are both unlawful enemy combatants and aliens. The commission and habeas stripping provisions quite clearly do not apply to citizens.

Some people have argued that a President might use the definition of unlawful enemy combatant in a number of unsavory ways and I suppose that he or she might. But nothing in the Act empowers him or her to do so. The definition, while overly broad, by its terms applies only to the newly created Chapter 47A which provides for military commissions and strips habeas for alien enemy combatants.


Anonymous said...

It maybe doesn't strip citizens of habeas but here is my concern.

It appears that this act gives the military authority over all such people. As a result, it would seem that all law enforcement would have to turn over people to the military or we would need military people patroling civilian populations.

This is troublesome to me because when is the determination made that they have a legitimate captive and when they don't and who is going to pay for the innocent victims trouble.

Here in tropical Wisconsin, I think that we don't have the death penality because people haven't accepted that people in power can be trusted with that kind of power. While I trust the military probably more then any other part of goverment, how can we trust what may come out of this?

Michael J. Mathias said...

Rick--I had to obtain my own counsel on this matter. I'm going to write up something about this later, but essentially our anonymous friend has characterized the objection for me. The law is so broadly rendered that even citizens can get caught up in it.

Rick Esenberg said...


I have a problem with the definition of unlawful enemy combatant as well and that does not exclude citizens.

But ... when the law says what you can do with unlawful enemy combatants, i.e., try them before a military tribunal and not hear their habeas petitions, it limits those things to "alien enemy combatants." Read it.

Since the definition is adopted "for purposes of this chapter", it doesn't apply to anything else.