Well.

In case you haven’t read, the Military Commissions Act of 2006 passed the Senate on a roll-call vote by 65 to 34, with one abstention. Put briefly, this bill suspends most of the Constitution, stating that anyone not a citizen may be arrested and tried under military law, absent the rights to challenge evidence, have counsel of their choosing, call witnesses, or challenge the basic cause for their detention under habeas corpus. Conviction is by a majority vote of the military commission under secret ballot; they may be appealed to a military appeals court, and thence to a civilian court. (Note that this is a bit milder than some of the previous situation, in that it only affects non-Citizens; but note also that the key provision of the 14th amendment is that the rights stated under the Constitution apply to all persons, not only to citizens. This was instated soon after the Civil War, when freed blacks were persons but not citizens. You may notice that the executive branch also has the ability to strip citizenship)

Sections 7 and 8 effectively give blanket immunity to US personnel for charges of war crimes, specifically w.r.t. the Geneva Conventions. Basically, it redefines the War Crimes Act to allow whatever the President says. (Sec. 8.a.3 of this bill)

Some good news: This isn’t the first time our country has suspended the Constitution in some wholly unconstitutional manner; each time it was realized and reverted a few years later. I suspect that the same will happen here, after our current President — may his name and his memory be erased — is gone and the Congress cleaned up as well. It’s very important to do that, soon, before (more) lasting damage is done: remember to vote in this coming election, no matter where you are, and if you can contribute to electoral races, do so. And next election. And the one after that.

(On the subject of lasting damage: No real developments in the Arar case since the Canadian government’s report. Apparently they admit that they mistakenly tagged him as a terror suspect and gave this information to the US; the US promptly shipped him off to Syria to be tortured. The Canadian government apologized. But that doesn’t answer the basic question of where the safety checks went that would keep a single mistaken identification from sending someone off to a torture chamber for a year — isn’t this precisely why we have a rule of law?)

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Published in: on September 29, 2006 at 10:50  Comments (52)  
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52 Comments

  1. It doesn’t suspend any portion of the Constitution at all.
    You cite the 14th amendment, but the application is incorrect. The Constitution applies to legal residents within the United States. The courts have extended those protections to illegal aliens within the United States as well as those individual in custody of US law enforcement officials. The Constitution in no way guaruntees the rights of foreigners on foreign soil, though a number of treaties signed by the US does.
    The use of military commissions has existed since before World War 2. The language in this bill is consistent with the military tribunals and commissions that have existed within context of military law, completely in keeping with the letter of the Constitution.
    Those individuals that are caught engaging in hostilities against the United States are criminals and are charged in the civil courts. Those aliens captured engaging in hostilities against the United States overseas are subject to military commissions.
    So what’s the problem?

  2. I’m not a citizen. I can’t vote. Everyone else should go do so *because you can*. I want to have a voice and don’t, right now. I could be deported and there’s nothing anyone can do about it. I want to live in a country where I actually have rights. Go vote so that I, and people like me, have basic human rights.

  3. I’m a permanent resident. I’m here legally, am contributing to society, not engaging in illegal activities, but under this new legislation– as I understand it– I can be designated an “enemy combatant” and made to disappear.

  4. I’m a permanent resident. I’m here legally, am contributing to society, not engaging in illegal activities, but under this new legislation– as I understand it– I can be designated an “enemy combatant” and made to disappear.

  5. Actually, no. As I stated earlier, if you read the text it doesn’t apply to foreign nationals living within the United States.

  6. Actually, no. As I stated earlier, if you read the text it doesn’t apply to foreign nationals living within the United States.

  7. There is one line of logic that goes like this: Well, let’s isolate group A and remove there rights, because of very good, valid reason 1. Other groups are causing problems, though, so let’s expand the scope to groups A, B, and D, and expand the reasons for this to 2 and 3. Oh, and we forgot C, so through them in too. Next, we move onto groups E, F, G, H, and I. The reasoning there is not quite as sound, but it is pretty good too, because of 4, 5, and 6. But if we go that far, why not go even farther? It just makes sense and makes us all (forgetting groups A-I already) safer, right? So we add in groups J through N too. Eventually, you get down to have the only people who are safe from this, and therefore maybe ‘safe’ in general, be groups T and up. Those ‘still safe’ groups might be, say, upper-class, patriot, male WASPs, or, in another example, blonde-haired, blue-eyed, fair-skinned, ‘good family’, areligious (but susceptible to occult mumbo-jumbo), party members (because really, everyone should be a party member, right?) ethnic Germans.
    Then at that point we are so close to a police state that it is just too easy for somebody to just up and says, “Party’s over, no more democracy. I run the shots here from now on.”

    I don’t know if it actually applies here, but many people feel it does.

  8. There is one line of logic that goes like this: Well, let’s isolate group A and remove there rights, because of very good, valid reason 1. Other groups are causing problems, though, so let’s expand the scope to groups A, B, and D, and expand the reasons for this to 2 and 3. Oh, and we forgot C, so through them in too. Next, we move onto groups E, F, G, H, and I. The reasoning there is not quite as sound, but it is pretty good too, because of 4, 5, and 6. But if we go that far, why not go even farther? It just makes sense and makes us all (forgetting groups A-I already) safer, right? So we add in groups J through N too. Eventually, you get down to have the only people who are safe from this, and therefore maybe ‘safe’ in general, be groups T and up. Those ‘still safe’ groups might be, say, upper-class, patriot, male WASPs, or, in another example, blonde-haired, blue-eyed, fair-skinned, ‘good family’, areligious (but susceptible to occult mumbo-jumbo), party members (because really, everyone should be a party member, right?) ethnic Germans.
    Then at that point we are so close to a police state that it is just too easy for somebody to just up and says, “Party’s over, no more democracy. I run the shots here from now on.”

    I don’t know if it actually applies here, but many people feel it does.

  9. Indeed, and the administration is legally correct in its assessment that the protections of the Geneva Conventions do not cover non-uniformed combatants (presumably to encourage combatants to follow certain rules of war).
    However, just because you can do a thing does not mean you should do a thing. Evidence continues to mount that we are moving backwards in the war on terror. Iraq crumbles beyond our control, Afghanistan is starting to look like it may follow, and intelligence papers are emerging that report that our actions since 9/11 have only resulted in an increased number of terrorists and acts of terror.
    I would argue that the blasé dismissal of the rights of those we capture as evidenced in this bill continues to push us in the wrong direction. What’s the problem? That this is the sort of wrong-headedness that will simply continue to feed the sources of terrorism, not eliminate them.

  10. Indeed, and the administration is legally correct in its assessment that the protections of the Geneva Conventions do not cover non-uniformed combatants (presumably to encourage combatants to follow certain rules of war).
    However, just because you can do a thing does not mean you should do a thing. Evidence continues to mount that we are moving backwards in the war on terror. Iraq crumbles beyond our control, Afghanistan is starting to look like it may follow, and intelligence papers are emerging that report that our actions since 9/11 have only resulted in an increased number of terrorists and acts of terror.
    I would argue that the blasé dismissal of the rights of those we capture as evidenced in this bill continues to push us in the wrong direction. What’s the problem? That this is the sort of wrong-headedness that will simply continue to feed the sources of terrorism, not eliminate them.

  11. Sec 948c states: “Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.”
    Terms are defined in section 948a:
    948a.1: “The term ‘alien’ means an individual who is not a citizen of the United States.”
    948.a.3: “The term ‘lawful enemy combatant’ means an individual who is (a) a member of the regular forces of a State party engaged in hostilities against the United States; (b) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizeable at a distance, carry their arms openly, and abide by the law of war; or (c) a member of a regular armed force who professes allgeiance to a government engaged in such hostilities, but not recognized by the United States.”
    948.a.4: The term ‘unlawful enemy combatant’ means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.
    I read those sentences together as saying that the people subject to these commissions are all non-Citizens who either engage in hostilities or “hav[e] supported hostilities.”

  12. Sec 948c states: “Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.”
    Terms are defined in section 948a:
    948a.1: “The term ‘alien’ means an individual who is not a citizen of the United States.”
    948.a.3: “The term ‘lawful enemy combatant’ means an individual who is (a) a member of the regular forces of a State party engaged in hostilities against the United States; (b) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizeable at a distance, carry their arms openly, and abide by the law of war; or (c) a member of a regular armed force who professes allgeiance to a government engaged in such hostilities, but not recognized by the United States.”
    948.a.4: The term ‘unlawful enemy combatant’ means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.
    I read those sentences together as saying that the people subject to these commissions are all non-Citizens who either engage in hostilities or “hav[e] supported hostilities.”

  13. This is the precise application of the law based on over a century of precedence. One can hardly argue the erosion or rights, particularly with regard to foreign unlawful enemy combatants captured on foreign soil.
    Slippery slope arguments are rarely effective or accurate.
    Most oft because they rarely have anything to do with reality.

  14. Could you elaborate upon your seemingly sarcastic remark that “because they rarely have anything to do with reality”? I recognize that slippery slope arguments are certainly not always useful representations or very predictive.

  15. Attempting to link the degradation of the situation in Iraq and the use of military commissions and tribunals by the government is to misrepresent the situation in the region and to trivialise the true issues in the matter for the sake of political expediency.
    I would argue that the bill does not represent the dismissal of rights as even the Geneva Convention outlines the methods and means for the detention and trial of captured legal combatants.
    But in a global struggle that does not involve nation-states or clearly distinct, defined geo-political entities that can be held accountable by international institutions, the Geneva Convention falls well short of providing those sorts of mechanisms and require refinement.
    Just because it is new and different does not make it bad.

  16. Thank you for posting this. It got me riled up enough to make a post of my own…
    …for whatever good it’s worth.

  17. It seems like there is an inconsistency here. You are saying here that there is something new and different, but above you are saying that this is just a “precise application of the law based on over a century of precedence”. Are you saying that the new and different is in relation to the Geneva Convention? Something else?

  18. It’s not sarcasm. Merely a statement of fact. Slippery slope arguments are fallacies in logic and rarely represent the true nature of a situation.
    That said, you presented a slippery slope argument in your first paragraph which, succinctly, amounted to this:
    If we pass this bill, then we will end up with a police state.
    Which is, as slippery slope arguments are, an oversimplification of the situation and often plays on the ignorance and fears of those that the argument is presented to.

  19. I’m not going to make any slippery-slope arguments; from my reading of this document, this is the real thing, not a precursor.
    First of all, as per my other comment: this bill is not limited, as far as I can tell, to foreigners on foreign soil; it seems to apply to non-US-Citizens wherever they may be.
    The Amar case seems to be an indication of why this is so deeply a problem. Amar was captured in transit through the US, thus as a foreign citizen on US soil; but rather than being sent through an ordinary legal procedure, wherein it would likely have been discovered that the Canadian intelligence was deeply flawed, he was rendered over to Syria for interrogation.
    I realize that this is not the specific case covered by the law here, since he was rendered rather than tried by a tribunal; but it illustrates the key point that these terrorism charges are not being given the sort of scrutiny that an ordinary legal charge would receive, even one of much less severity, as well as the fact that foreign nationals on US soil are being considered aliens in practice.
    It seems to me that this bill establishes a de facto martial law with respect to all non-citizens. Do you see something in its text, or in the established legal climate, that contradicts this?

  20. Precedence garnered over the detainment of enemy combatants, the definition of lawful and unlawful combatants, interrogation techniques, the definition of war crimes, the use of military tribunals and commissions, and the release of prisoners at the cessation of hostilities. Some of these have been codified into an international treaty which limits the destruction of property and loss of life amongst the civilian population and guaruntees certain protections to lawful combatants captured during the course of war.
    The gap in the legal structure exists with regard to illegal combatants, because it was understood by nations throughout history that illegal combatants were not protected under the convention nor afforded any rights or protections under any legal structure. They were often regarded as spies by the mnations that captured them which meant that those prisoners were often immediately executed upon capture.
    The quandry with US operations is that it is not desirable to execute prisoners as they are a valuable source of intelligence. However, no international or, even, domestic legal structures adequately addresses the issue of illegal combatants that are not immediately executed.
    This law is merely an attempt to further refine the international laws through the precedents that have existed, by providing a legal framework that defines the treatment and rights, whatever they are, of illegal combatants.

  21. Non-citizens who are either engaged in hostilities, or are members of a State party in support of such hostilities.
    Which means that you’re either actually pulling the trigger, or are a member of some countries organisation directly in support of those hostilities.
    How many non-citizens, in the United States, are either pulling the trigger or are part of some foreign government effort supporting hostilities against the United States?
    (the latter, by the way, is defined internationally as “spying” if conducted within the United States)

  22. Agreed with all of this. However, there are some serious deficiencies in this law:
    (1) “Enemy combatants” is very loosely defined, since it suffices to simply “support” the enemy. Importantly, the word isn’t given its usual qualifier “material,” which means that the law specifically allows the use of this definition for much broader types of support than are traditionally considered. (Providing guns is material support; speaking in someone’s favor is non-material support) This law seems to leave the decision on who is an enemy combatant in the hands of SECDEF, which is a damned scary (and unaccountable) place to leave it.
    (2) There is no doubt that a procedure needs to exist for the handling of non-uniformed combatants. But this procedure explicitly restricts almost every procedural safeguard, not only of civil law, but of the UCMJ. (See particularly section 949a.2, and the fact that it’s overridden by 949.a.b.1 whenever SECDEF so orders; and 948.b.c, which notes specific provisions of the UCMJ which are explicitly rejected by these commissions) Very concerningly, it permits indefinite detention of people without any trial or ability to challenge detention even in military court. (948.b.c.A)
    This combination of factors seems like it disassembles the basic foundations of justice, or any semblance thereof. The first means that it’s applicable not only to persons encountered on the battlefield, but to anybody whom the SECDEF (or his appointed agents) deems necessary; the second means that anyone so labeled has no effective defense or response. Neither of those are necessary for simply refining the existing procedures to deal with enemy agents captured on the battlefield.

  23. Note that it says “support,” not “material support.” This is a pretty loose standard of membership or of hostile action.
    Compare, for example, to 18 U.S.C. 2339B, the 1996 anti-terror act, which prohibits provision of “material support or resources” to an organization designated as a foreign terrorist organization. The omission of a modifying adjective here will very certainly be taken seriously by the courts to have been intentional.

  24. Note that it says “support,” not “material support.” This is a pretty loose standard of membership or of hostile action.
    Compare, for example, to 18 U.S.C. 2339B, the 1996 anti-terror act, which prohibits provision of “material support or resources” to an organization designated as a foreign terrorist organization. The omission of a modifying adjective here will very certainly be taken seriously by the courts to have been intentional.

  25. Sure. The application of the law is extremely limited.
    1) Either you are a direct combatant
    2) or a member of an official organisation of a foreign government supporting hostilities directly (e.g. intelligence, sabotage, etc)
    How many non-citizens truly fall under either?
    Laws are very specific. Like the so-called domestic wiretapping program, people tend to read more into them than they actually are and overreact as a result.

  26. Sure. The application of the law is extremely limited.
    1) Either you are a direct combatant
    2) or a member of an official organisation of a foreign government supporting hostilities directly (e.g. intelligence, sabotage, etc)
    How many non-citizens truly fall under either?
    Laws are very specific. Like the so-called domestic wiretapping program, people tend to read more into them than they actually are and overreact as a result.

  27. I don’t see how you derive (2) from the text of this law. AFAICT it simply requires that you either engage in or support hostilities, and it chooses a term for support which is intentionally broader than the material support requirement of existing law.
    If the law were indeed limited to actual combatants or effective combatants such as spies, that would be one thing. (Although that would bring up the question of how one proves that people actually are effective combatants, and who judges) But this law doesn’t seem to do that.

  28. I don’t see how you derive (2) from the text of this law. AFAICT it simply requires that you either engage in or support hostilities, and it chooses a term for support which is intentionally broader than the material support requirement of existing law.
    If the law were indeed limited to actual combatants or effective combatants such as spies, that would be one thing. (Although that would bring up the question of how one proves that people actually are effective combatants, and who judges) But this law doesn’t seem to do that.

  29. to anybody whom the SECDEF (or his appointed agents) deems necessary
    And it is that clause which truly makes this bill authorize Star Chambers.

  30. to anybody whom the SECDEF (or his appointed agents) deems necessary
    And it is that clause which truly makes this bill authorize Star Chambers.

  31. I don’t believe so. Read it again.
    `Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.’
    It is clear that it is specifically limited to individuals who have “supported hostilities” and are or have been an “enemy combatant”.

  32. I don’t believe so. Read it again.
    `Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.’
    It is clear that it is specifically limited to individuals who have “supported hostilities” and are or have been an “enemy combatant”.

  33. 1) You’re putting and incorrect spin on this.
    A combatant is exactly that. In international law a combatant is one who engages in direct hostilities (or is clearly identified as one – i.e. uniforms, markers, badges, etc). There can be no mistake by either the US civil or military judicial systems, nor by international courts.
    2) By international law, non-uniformed combatants are illegal combatants. As they are not military combatants, the Uniformed Code of Military Justice does not apply to them. Even if one attempted to apply the UCMJ to the illegal combatants, it could not be done. It clearly lies outside the jurisdiction. The UCMJ, with International Law, protect civilians and legal combatants only.
    I agree the gap exists. I agree that timely review by military commission or tribunal should be conducted upon challenge.

  34. Right, but the term “supported hostilities” is vague (does saying “I think those hostilities are a great idea!” count? If not, why doesn’t it say “materially supported hostilities?”)
    There’s some confusing language, as well. The definition of an “unlawful enemy combatant” includes that the individual “has engaged in hostilities,” but then 948c specifies unlawful enemy combatants “engaged in hostilities or having supported hostilities.” It isn’t clear to me which definition takes precedence: if merely having supported hostilities, rather than actually having engaged in them, suffices, then why is engagement in hostilities mentioned in 948a.4? But if one actually has to have engaged in hostilities to be subject to this act, why does 948c add the “or” clause?
    My suspicion is that this mess originated because the phrases were chosen for partially political reasons, and nobody read through it carefully. But that’s far too nebulous a suspicion to count in court, of course, and I think it’s going to take a lawyer to interpret this.
    But my first reading is that 948c is attempting to be more specific, and to define the jurisdiction precisely, so its terms should be read as superceding those of 948a.4. That interpretation would read the conflict between the two lines as a bit of text unintentionally ommitted from 948a.4, while the other interpretation would require that the extra text in 948c was unintentionally inserted. The latter seems a lot less likely, since the words of 948c are fairly precisely crafted, and it would be difficult to do that by complete accident. Phrased another way, the latter interpretation would imply that the entire “or” clause in 948c is preemptively struck down by 948a.4, which is a very odd thing to happen in a single bill.

  35. Actually you’re right.
    It’s more accurate to say an enemy combatant that has supported hostilities.
    But that individual still must be an illegal combatant, not merely support personnel.
    And the bill states this adequately.

  36. I’m not certain that the bill says so, and I’m even less certain that it was meant to say so. (cf the other comment thread, about 948a.4 versus 948c) It seems to me that 948a.4 was trying to conform to international law, and 948c was trying to broaden the scope of the law pretty radically.
    If there were such a restriction, I would be quite a bit less alarmed by the bill; it wouldn’t be dismantling the Constitution in that case, at least. However, its total lack of safeguards would still be a pretty big issue: the Arar case only happened because there was no second set of eyes on the matter, and this law seems to formalize that lack of oversight pretty soundly.

  37. I guess it is confusing. To me, based on the various legal systems I’ve worked within, a combatant is a combatant – someone who picks up a rifle and shoots people.
    Whether he is currently engaged in hostilities or has supported hostilities (read: engaged in hostilities, past tense) doesn’t matter. He’s someone that has at one time picked up a rifle and shot at US troops, and continues to support the cause in some way.
    Still, you’re right. This should probably be clarified, if only to make sense to the civilian population that’s being asked to support the laws and the processes.

  38. It should probably be explicitely stated in the bill to avoid confusion.
    But every US law and international law states the definition of combatant clearly, so when I read combatant it always means one thing to me – someone in uniform or someone pulling a trigger.

  39. I know what you mean. 🙂 If “combatant” were that specifically defined, this bill would make a lot more sense. But this term is nebulous, in a “it-means-whatever-we-want-it-to-mean” sort of way; with a president who believes this strongly in unlimited (or “unitary”) executive power, I don’t trust it.

  40. Beware of sneaky bastards writing laws. A lot of them are much less savory than the people you’ll find shooting at you on a battlefield. 🙂

  41. Well, the protections never applied to me.
    I’ve always understood that, no matter what the laws state, I would not be afforded those protections and would most likely be executed.
    In that way, those sneaky bastards writing laws are much better people than the ones shooting at me.

  42. Very true. But in your case, the quote is more appropriate: “Let us not rail against injustice so long as we have arms, and the freedom to use them!”

  43. Very true. But in your case, the quote is more appropriate: “Let us not rail against injustice so long as we have arms, and the freedom to use them!”


  44. I guess it is confusing. To me, based on the various legal systems I’ve worked within, a combatant is a combatant – someone who picks up a rifle and shoots people.
    Whether he is currently engaged in hostilities or has supported hostilities (read: engaged in hostilities, past tense) doesn’t matter. He’s someone that has at one time picked up a rifle and shot at US troops, and continues to support the cause in some way.

    If that were true, so much the better. However, the government has detained at least one person as an “enemy combatant” who doesn’t match that definition at all — Jose Padilla. That’s a well-publicized case of someone who, although he certainly appears to have connections with terrorist organizations and to have intended to commit a terrorist act, has never engaged in combat with US troops — or with anyone so far as we know.
    Which is, of course, contrary to the plain meaning of the word “combatant,” but I think it’s important to consider how the term has been used in the past. When you say that the law applies only to people who have actively engaged in hostilities, you’re interpreting combatant to mean, well, combatant. Which would certainly make sense — I just don’t think it’s consistent with the way the administration has been using it. Unless the term is defined more clearly within the legislation itself — and it doesn’t appear to be — I would suspect that’s the use we’ll see going forward.


  45. I guess it is confusing. To me, based on the various legal systems I’ve worked within, a combatant is a combatant – someone who picks up a rifle and shoots people.
    Whether he is currently engaged in hostilities or has supported hostilities (read: engaged in hostilities, past tense) doesn’t matter. He’s someone that has at one time picked up a rifle and shot at US troops, and continues to support the cause in some way.

    If that were true, so much the better. However, the government has detained at least one person as an “enemy combatant” who doesn’t match that definition at all — Jose Padilla. That’s a well-publicized case of someone who, although he certainly appears to have connections with terrorist organizations and to have intended to commit a terrorist act, has never engaged in combat with US troops — or with anyone so far as we know.
    Which is, of course, contrary to the plain meaning of the word “combatant,” but I think it’s important to consider how the term has been used in the past. When you say that the law applies only to people who have actively engaged in hostilities, you’re interpreting combatant to mean, well, combatant. Which would certainly make sense — I just don’t think it’s consistent with the way the administration has been using it. Unless the term is defined more clearly within the legislation itself — and it doesn’t appear to be — I would suspect that’s the use we’ll see going forward.

  46. replying to myself … sheesh. I wanted to say that i realize that Padilla is a US citizen, which complicates matters slightly. But I think that the citizenship issue at the moment is interpreted as proving that Padilla himself does not belong to the class of people called “enemy combatants,” rather than changing the nature of that group.

  47. replying to myself … sheesh. I wanted to say that i realize that Padilla is a US citizen, which complicates matters slightly. But I think that the citizenship issue at the moment is interpreted as proving that Padilla himself does not belong to the class of people called “enemy combatants,” rather than changing the nature of that group.

  48. According to the current definition, one who is a member of an organisation that actively engages in hostilities against the US, has trained to engage in hostilities by that organisation, and is captured on the way to engage in hostilities clearly falls under the current definition of a combatant. Jose Padilla is clearly an illegal combatant.
    Moreover, I submit that he falls clearly under the definition of an illegal combatant and the rules regarding US citizens and treason are less appropriate to apply in this case.

  49. That’s different from the definition of an illegal combatant you just described, which involves someone who has actually engaged in hostilities. And indeed, Padilla himself is no longer an “illegal enemy combatant”; he is now a plain old criminal defendant. It’s noteworthy, mind you, that he wouldn’t ever have been an “enemy combatant” under the text of the present law as I understand it.
    But this is my point: we have no clear definition what such a combatant is — I mean, there are some people who are clearly unlawful combatants: spies, saboteurs, guerrillas, all that kind of thing. Armed combatants who don’t wear a uniform or belong to the military of a state and are thus not covered by Article 4 of GCIII. Something definitely has to be done to establish a legal framework for their detention. I’m not confident at all that this is it, however.
    And we desperately need a clear definition of an “unlawful enemy combatant,” not just an assertion of what we think one is likely to be. Because, yes, precedent suggests they’re what I’ve described above, but the actual wording of the law is not sufficiently clear — in particular, we need to know what constitutes “supporting hostilities.”
    The provisions of Sections 7 and 8, which are unrelated, are of course contemptible.

  50. An individual that is trained to engage in hostilities against another nation by an organisation that is currently engaged in hostilities against the US and is caught on the way to engage in hostilities with the intent to engage with dirty bombs is, by all definitions, and illegal combatant – even if he is unsuccessful in the attempt.
    The reason he’s a criminal defendent is because of his unique status as a US citizen, and because his capture was on US soil. US civil law and protections clearly apply in the case, even in cases of treason. Under no circumstance could the USG be able to detain him and process him through military commissions or tribunals.
    If he had been captured overseas, he would fall under military purview as an enemy combatant (at the wish of the USG). But such was not the case.
    Remember Walker?

  51. Under no circumstance could the USG be able to detain him and process him through military commissions or tribunals.
    But he was detained and held in military custody for three years before he was finally released to the federal justice system, a ludicrous violation of his Sixth Amendment rights. So you and me and the rest of the world may see that US criminal law “clearly applies,” but it took a couple of years and a couple of trips to the Supreme Court to get the administration to see it the same way. He hasn’t been charged with treason, incidentally, but with conspiracy to commit various crimes including murder and kidnapping.
    Now, like I’m saying, under the current law this couldn’t happen, because Padilla is a US citizen. But I still don’t think we have a satisfactory definition of an enemy combatant, and as long as we don’t we’re going to get these kinds of situations. You seem to think it’s very cut and dried, and nothing would please me more than for you to be right. But so far, based on their past behavior, I don’t see any reason to believe that the administration doesn’t intend to use every loophole they can find — and the vague language in the definitions seems to be there for just that purpose.

  52. I don’t disagree. There’s plenty to be gained with clear definitions in the law. There are certain discrepancies that exist that need to be tightened.
    The laws protecting US citizens in this nation are very defined. Don’t mistake the enthusiasm of this Administration for trampling rights as the failure of the system. The system works, though sometimes a little slowly.
    I don’t believe that it is necessarily cut and dried. Further definition is always good. Be must take care, however, not to water down the definitions so much as to make them ineffective.


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