by Joe Wolverton II, J.D.
October 30, 2006 Under the Military Commissions Act of 2006, you could be.
The Military Commissions Act of 2006 allows the executive branch to circumvent the Constitution, endangering the due process of law for all Americans, not just terrorists.
On September 28, by a vote of 65-34, the Senate formally passed S. 3930, the Military Commissions Act of 2006 (MCA). The next day, the House of Representatives followed suit, passing the act by a vote of 250-170, and the affixing of the president’s signature is now a formality.* This legislation is being highlighted by the Bush administration and most Republicans as a get-tough-on-terrorists measure that allows "alien unlawful enemy combatants … [to be] subject to trial by military commissions" without the constitutional safeguards American citizens possess against illegal detainment and judicial railroading. Moreover, the bill allows "pain or suffering incidental to lawful sanctions" and "statements … obtained by coercion" — think administration-approved methods of torture…
In effect, one could say that the sick world is being given potent poison to bring about the cure sponsored by President Bush. Granted, the bill does not apparently treat citizens and foreigners equally, and the harshest treatment would generally be doled out to foreigners, but is the bill something we want to inflict on ourselves or others? Can we justify it by saying that the majority of those scooped up will be terrorist killers who deserve what they get? Let’s look at what the bill would do.
A component of this bill that has attracted the attention of legal commentators and civil libertarians alike is that part which authorizes the president to suspend the right of habeas corpus. Habeas corpus is Latin for "you have the body." It grants prisoners the right to request from a judge the reasons for his incarceration. Article 1, Section 9 of the United States Constitution plainly states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
Despite the Constitution’s clear restriction on the suspension of this bulwark of liberty, the bill states:
No court, justice, or judge shall have jurisdiction to hear or consider any claim or case of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement…
Are You an Enemy Combatant?
Americans would be forgiven for naively believing that while the threats to liberty in the MCA tip-toe toward tyranny, they will only be used toward that end against those with at least diaphanous ties to terrorism. Namely, they would be employed to protect Americans from that group of n’er-do-wells known as "unlawful enemy combatants." In language that is sure to shake your sense of safety, the following is the MCA’s definition of an "unlawful enemy combatant":
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.
Notice that this definition contains no exception for Americans; it throws the blanket over citizen and alien alike by using the word "person" rather than "alien." Jose Padilla found this out firsthand.
Jose Padilla is an American — born in New York and raised in Chicago. On May 8, 2002, he was arrested in Chicago after returning from Pakistan upon suspicion of being linked to the September 11, 2001 terrorist attack. Padilla’s attorney immediately filed a habeas corpus petition with the United States District Court for the Southern District of New York, seeking to invoke his client’s constitutionally guaranteed right to be informed as to the justification for his confinement. The court denied Padilla’s petition citing the president’s authority to designate any person, citizen or alien, an "enemy combatant" and to detain such person indefinitely…