I don't think it's clear that this new law cannot be applied to U.S. citizens. See http://balkin.blogspot.com/2006/09/does-military-commissions-act-apply-to.html for arguments that at least parts of it can be. E.g., Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a.
Yeah, I've read Balkin's post on it. I didn't say the law didn't apply to citizens; what I said was that bill still leaves US citizens with habeas protections. So, unlike for aliens, citizens should still get a trial, in which case they'll need evidence. At the very least, as written, a citizen who was detained could exercise that right to challenge the conclusiveness of their determination as an enemy combatant. A court still might rule that, by the law, the determination is conclusive, and that 948a(1)(ii) is constitutional, in which case you'd be SOL - but the gov't will need evidence if they follow Hamdan and give you a trial. Of course, they might refuse to let you challenge the determination, but that would effectively strip you of the habeas protections the bill specifically doesn't strip you of - I wouldn't be surprised, but we're talking about what the law says they can do, not what they might do anyway. :)
From http://www.wsws.org/articles/2006/oct2006/tort-o03.shtml: Perhaps the most significant change in the text of the bill during the last two days of House-Senate-White House talks was the redefinition of “unlawful enemy combatants” who are subject to indefinite detention or trial by military kangaroo courts under the Military Commissions Act. These can now include US citizens and legal residents who are deemed by the US government to have “purposefully and materially supported hostilities against the United States or its cobelligerents.” Once a Combatant Status Review Tribunal consisting of military officers makes that determination, it is not subject to any judicial oversight, and the person so designated disappears into the new American gulag.
From http://www.buzzflash.com/articles/contributors/442: According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? [...] the Act does stipulate that "any alien unlawful enemy combatant engaged in hostilities against the United States or having supported hostilities against the United States is subject to trial by military commission..." (my italics). However, any student of elementary logic knows that, from "All A are "B" it does not follow that All non-A are non-B." In other words, this does not mean that someone who is determined by the President or the Secretary of Defense to be an "unlawful enemy combatant," but who also happens to be an American citizen is therefore automatically off the hook.
From http://www.counterpunch.com/moses10032006.html: when a state gets to declare in advance who the terrorist is and never is obliged to respect that person's rights to due process, then we have made a state which can declare its own infallibility.
This applies just as much to the state getting to declare who enemy combatants are, too.
From badmagic's What IT could teach the President (http://badmagic.livejournal.com/325286.html): they've forgotten why we have writ of habeas corpus, rules of evidence, and whatnot. They're designed to minimize the changes of the innocent being swept of with the guilty, of things going wrong. The six-sigma of justice, if you will. They're taking out the error checking. We've all been on that project, haven't we? Every code-wonk knows, if you take out the error checking, you get errors.
![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 4 Oct 2006 05:41 (UTC)no subject
Date: 4 Oct 2006 11:12 (UTC)no subject
Date: 7 Oct 2006 15:54 (UTC)From http://www.wsws.org/articles/2006/oct2006/tort-o03.shtml:
Perhaps the most significant change in the text of the bill during the last two days of House-Senate-White House talks was the redefinition of “unlawful enemy combatants” who are subject to indefinite detention or trial by military kangaroo courts under the Military Commissions Act. These can now include US citizens and legal residents who are deemed by the US government to have “purposefully and materially supported hostilities against the United States or its cobelligerents.” Once a Combatant Status Review Tribunal consisting of military officers makes that determination, it is not subject to any judicial oversight, and the person so designated disappears into the new American gulag.
From http://www.buzzflash.com/articles/contributors/442:
According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? [...] the Act does stipulate that "any alien unlawful enemy combatant engaged in hostilities against the United States or having supported hostilities against the United States is subject to trial by military commission..." (my italics). However, any student of elementary logic knows that, from "All A are "B" it does not follow that All non-A are non-B." In other words, this does not mean that someone who is determined by the President or the Secretary of Defense to be an "unlawful enemy combatant," but who also happens to be an American citizen is therefore automatically off the hook.
From http://www.counterpunch.com/moses10032006.html:
when a state gets to declare in advance who the terrorist is and never is obliged to respect that person's rights to due process, then we have made a state which can declare its own infallibility.
This applies just as much to the state getting to declare who enemy combatants are, too.
From