I'm a lawyer who is not a specialist, by any means, in human rights law or the law of national security. Nevertheless, these issues interest me greatly, and I spend a lot of time keeping informed about them.
Today I was doing a little research on the background legal issues implicated by the Military Commissions Act (I refer to it as the Bush-McCain Legalization of Torture Act) and ran across some things that scared the bejeesus out of me in light of what is in this bill.
Let's just say, if you really wanted to be paranoid about it, and assume the worst about this administration, you could justly fear that Congress, in passing this bill, may have just handed the Bush Administration legal authority to administratively detain, without legal review, U.S. citizen dissidents, political enemies and, well, anyone they damn well choose.
First, a little background. A little known fact about our legal history is that, on several occasions since WWII, the Executive Branch unilaterally -- and on at least one occasion, the Congress -- put in place "legal" regimes authorizing, in times of emergency, the administrative detention of "dangerous persons" in the U.S.
In 1948, for instance, the Justice Department promulgated a program called "the Portfolio." The Portfolio purported to grant authority to the President, upon declaration of an "emergency," to order the arrest and detention of "dangerous persons," including citizens, upon an issuance of a "master warrant" describing the class of person to be detained. The writ of habeas corpus would be suspended, and detainees would have no resort to courts but would be limited to arguing for their release to specially constituted boards of review not bound by rules of evidence, with appeal solely to the President himself. (This may already be sounding familiar to some of you.) (This program is discussed extensively in the Church Committee Staff Report, Senate Report No. 94-755, at pp. 438-39, released in 1976.)
In 1950, Congress enacted Title II of the Internal Security Act (Pub. L. No. 92-128, section 2, 85 Stat. 347). This statute, repealed in 1971, had more stringent restrictions than the Portolio program, but authorized, again upon a declared emergency, indefinite detention of citizens without arraignment, bail or jury trial based on an administrative finding of prospective guilt using a "reasonable basis," not probable cause or beyond-reasonable-doubt, standard. Detention could be based on secret evidence to which the detainee had no right of access or challenge. (Again, some bells may be going off.)
Some of you may also remember an abruptly terminated discussion of "Rex-84" during the Iran-Contra hearings in the 80s. In short, Oliver North, working in conjunction with FEMA and other agencies, devised a program to arrest and detain "dangerous persons" on abandoned military bases in the event of a U.S. invasion of Nicaragua on the assumption that such an invasion would provoke massive civil disturbances in the U.S., given the strength of public opposition to U.S. support of the contras. North reportedly created a database of potential detainees compiled from lists of all persons arrested at protests against U.S. Central American policy or who had refused to pay taxes for political reasons. (When Rep. Jack Brooks of Texas tried to ask Col. North about this program during the televised hearings, Senator Inouye cut him off and directed him not to discuss that highly-classified issue.)
These are not the only examples of programs of this sort, but they establish the point that the Executive, especially, has historically considered the notion of preventive administrative detention of political troublemakers to be an acceptable policy under the right circumstances. And we all know how this administration has insisted on its right to detain citizens indefinitely without charge or legal recourse in the context of the War on Terror.
In 1971, when Congress repealed the administrative detention provisions of the Internal Security Act, it enacted a provision that stated that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U.S.C. section 4001(a). (That didn't stop the FBI from continuing to maintain lists of alleged "subversives," however, lists it supposedly destroyed in 1975.)
Section 4001(a) played a prominent role in the Supreme Court's decision in Hamdi v. Rumsfeld, in which the court held that the Authorization for the Use of Military Force resolution that Congress passed after 9/11 satisfied section 4001(a)'s command that a citizen may be detained only pursuant to Congressional act. (The Court eventually determined, nevertheless, that Hamdi, as a U.S. citizen, was entitled to meaningful judicial review of the government's basis for holding him as an "enemy combatant." A side note here for Senator Graham: read Hamdi and the cases it cites, such as Ex parte Quirin, and then issue an apology to the American people for erroneously claiming on the Senate floor that the remedy of habeas corpus has never been available to combat detainees in our history.)
Now let's look at the MCA. It authorizes the President to detain "unlawful combatants" and subject them to "trial" in kangaroo military courts -- or not, since nothing in the MCA requires the President to try anyone, and sets no limits on the duration of detention. It purports to take away any such detainee's right to seek habeas review, and it makes all determinations of the President and military commissions (except for final verdicts) unreviewable in any court. As many observers have pointed out, its definition of "unlawful combatant" is alarmingly broad. An "unlawful combatant" can be (1) anyone who fights for, or provides purposeful and material support to anyone who fights for, an enemy organization, or (2) anyone "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."
The first definition is troubling enough, since it's left to the Executive to define what purposeful and material support is, but the second one is mind-blowing. It literally says that an unlawful combatant is anyone who is judged to be one. Pair this definition with the court-stripping provisions of the MCA, its statement that all proceedings taken pursuant to the act shall be deemed to satisfy Common Article 3 of the Geneva Conventions, the provision that no person may henceforth invoke the Geneva Conventions in a U.S. court, and the command that courts may not look to anything other than U.S. domestic law in deciding any cases brought by persons challenging their detention or convictions under the act, and you have a recipe for indefinite, unreviewable detention of anyone for any reason.
The Bush administration knows that the Supreme Court in Hamdi has already determined that a less specific statute, the resolution for the Authorization of the Use of Military Force, satisfies 18 U.S.C. section 4001(a). It must surely then assume that the MCA, which is much more specific about detention, will be held to satisfy section 4001(a), as well.
Bottom line, then: this bill, whether by design or not, purports to give President Bush Congressional authority to detain U.S. citizens, classify them as "unlawful combatants" for whatever reason he wishes to do so, try them (or not) before military commissions that can consider secret and/or coerced evidence, and cut off all resort to the federal courts. If it withstands court scrutiny, then, the only thing standing between us and Guantanamo is the largesse of this Administration.
And this is a "compromise" bill? What country is this again?