Say Anything Blog

Earlier today I responded to a post by my friend, Richmond Times-Dispatch columnist Bart Hinkle, regarding the Military Commissions Act.  I took exception to Bart’s characterization of the legislation, and now Bart has responded to my criticism.

I’ll respond to his response point by point.

(1) Conservatives should be leery of any expansion of government power. To that end, they should ask themselves not what a law is intended to do, but what power it actually grants. More about that in a sec.

I agree that conservatives should be leery of any expansion of government power, but a) I’m not convinced the Military Commissions Act was an expansion of government power and b) even if you want to consider it an expansion of power I feel that it was a necessary one.

In support of my first point, let me say that Congress’ limitation of the federal courts’ jurisdiction in the area of habeas corpus filings by foreign terror detainees is an act fully in keeping with the constitution.  Note that Article III gives Congress all the authority it needs to define the jurisdiction of the federal courts, and that is exactly what they’ve done here.  Further, let me also point out that never before has this country granted habeas corpus privileges to war detainees.  Granted, the war on terror is not your typical war in that there isn’t a clearly defined field of battle and our enemies don’t come from a specific country or wear a specific uniform, but that is no reason to stop treating the war on terror as though it were a war.  Which leads me to my second point: The Military Commissions Act was necessary to wage the war on terror in that our soldiers and intelligence agents need to be able to detain people suspected of engaging in terrorism immediately and without having to prove to some lawyer that we have enough evidence to keep them in prison.

The idea of allowing a terror suspect to continue to operate while we struggle to build enough of a case against him to detain him just isn’t palatable to me.

(2) In fact, it is true that the Military Commissions Act (MCA) weakens habeas rights. Otherwise, there would be no need for the language brother Port cites denying courts jurisdiction to hear habeas appeals. Before the MCA, courts could hear habeas claims from resident aliens detained as unlawful enemy combatants. Now the courts can’t. Even if one says this is the proper course of action, it still constitutes a weakening of habeas rights. (So why not just say, “MCA weakens habeas rights for noncitizens, as it should”?)

I’m not we need to quibble over labels.  If we want to say that MCA weakens habeas rights for non-citizen terror detainees then let’s go ahead and do that.  I don’t have a problem with it.  What I object to is the idea that Congress/the President have grabbed some new sort of power.  As I’ve pointed out before, the MCA was a rebuke of a judicial power grab rather than a power grab from either the executive or legislative branches.  Never before has our court system agreed to hear habeas cases from foreigners detained as enemies of this country, but now they’ve started to do just that.  So Congress and the President smacked the judges back down.

Seems like a good example of our governments balance of powers working in harmony to me.

(3) Mr. Port then writes: “U.S. citizens . . . are the only people afforded the protections of the Constitution.” That this is not so is plainly evident from the Fourteenth Amendment, which distinguishes betweeen citizens and persons . . .The government cannot seize the property of a resident alien on a whim, merely because he is not a citizen. It must follow due process. Likewise, the guarantees of the Bill of Rights are properly considered restraints on federal power—not privileges extended to certain classes of residents.

Bart may have a point here…sort of.  I think it’s a bit of a stretch to suggest that the 14th amendment was intended to extend habeas corpus rights to foreigners detained as enemies of this country.  The Supreme Court, by applying the Geneva Convention’s article III provisions to detainees in the war on terror, tacitly granted those detainees prisoner of war status.  This country has a lengthy legal precedent of not providing prisoners of war habeas corpus relief.  As I just mentioned above, the courts have recently attempted to break away from that precedent but now, with the enactment of the MCA, have been rebuked.

(4) The MCA permits the indefinite detention of individuals found to be unlawful enemy combatants. It defines as unlawful enemy combatants not just those who have taken up arms, but also those who have “materially supported” hostilities against the U.S. What constitutes material support is a matter of some dispute. Should conservatives simply trust the federal government to interpret the phrase narrowly?

Personally, I don’t think we can trust the federal government to interpret any given legislation narrowly, but that’s an issue larger than the scope of this particular issue.  Bart is upset that the courts do not get to review the governments interpretation of what “materially supported” means, but I’m upset that the courts interpreted themselves as having the authority to hear habeas cases from detained enemies of this country in the first place.  Even if Congress didn’t limit the courts jurisdiction in this matter who is to say that the courts would interpret “materially supported” any more or less broadly than the military tribunals will?

Though I think this is something of an absurd argument.  “Materially supported” doesn’t seem all that vague to me.  You either supported the terrorists, or you didn’t.

5) The MCA also defines as an unlawful enemy combatant anyone “who 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.” In other words, if a military tribunal decides you’re an enemy combatant, that’s it. You are one. Should conservatives trust government to wield such arbitrary power wisely?

Well, to be fair, if a federal court decides you’re an enemy combatant…that’s it.  You are one.  I’m not sure why we’re trusting military tribunals less than federal courts.  Granted, military tribunals don’t need to adhere to the same standards as civilian courts do, but let’s not forget that the military tribunals are still operating under the auspices of Congress and the President.  Congress has, in the absence of a Presidential veto, the full authority to modify and even shut down these tribunals.  I think the MCA strikes a good balance between a necessary limiting of legal rights and oversight.

I certainly don’t think we need to be giving terror detainees access to the civilian judicial system.

(6) Brother Port is certainly right that American citizens presumably can challenge their detention in civilian court. How, precisely, that would work is an interesting question. Suppose you tell your guard, “Hey, Im an American citizen, I deserve my day in court,” and he says, “Oh, yeah? Prove it.” The Act seems to create a catch-22: In order to challenge your detention by a military tribunal in a civilian court, you first must convince a military tribunal you deserve access to a civilian court. And military tribunals need not abide by all the legal niceties extended to defendants in civilian courts.

This seems like a rather absurd example to me.  I cannot fathom an American citizen being denied access to the civilian courts by a military tribunal.  And even if it did happen let’s not pretend like these detainees won’t still have lawyers who, should such a thing happen, could raise a huge stink with the press.  Unless we want to go a step further and suggest that the military tribunal might also shut up the lawyers, but that’s just a bit too much of a conspiracy theory for me to swallow.

Finally,

(7) Rob concludes by saying, “all supporters of the Military Commissions Act want is for the detainees in the war on terror to be treated as though they were detainees of any other war” [emphasis added]. Quite reasonable. But—going back to point (1) above—that is not all that the law permits. In previous wars, an individual was detained if he was captured on the battlefield. Now he can be detained if, for instance, he gives money to a suspect charity, or—as in one case cited by Georgetown law professor David Cole—he was a college student whose website linked “to other websites which in turn featured speeches by Muslim sheikhs advocating violent jihad. The prosecution’s theory was that the student was providing ‘material support’ in the form of expert advice or assistance by running the website and linking it to such statements. On that understanding of the law, The New York Times could be prosecuted for featuring a link to Osama bin Laden’s latest taped statement.”

Would that ever happen? Perhaps not. But a good conservative shouldn’t just take Washington’s word for it.

I’ll grant that the definitions of what is and is not the battlefield, of who is and is not an enemy combatant, are blurry in this war on terror.  What I don’t understand is this inherent mistrust of the military tribunals established by the MCA.  We can talk about wrongful prosecution and abuse of authority all we want, but that happens on every level of the federal government…especially in the judicial system.

As I’ve already said, I believe these military tribunals strike the right balance between acknowledging that we need some procedure for determining who should and should not be detained as enemies in this country while simultaneously recognizing that giving them full access to constitutional rights and our civilian judicial system would be a mistake that would absolutely cripple our ability effectively detain people who are working to destroy this nation.

I’ve said it before and I’ll say it again: Civil liberties absolutism will be cold comfort if we can’t effectively defend ourselves from terrorism, and I don’t think we’d be able to do that if we allowed terror detainees full access to our legal system.

Update: Bart has one last point to make in our little debate over the MCA:

Port writes: “I cannot fathom an American citizen being denied access to the civilian courts by a military tribunal.” But that was precisely the question at issue in Hamdi v. Rumsfeld, which was a principal impetus for the MCA.

That’s a good point, but a bit misleading.

Hamdi was denied access to habeas relief because our government had not yet defined how we were going to handle enemy combatants in this new war on terror environment.  I think we can all agree that the war on terror is like no other war we have ever fought before.  There are no clear battlegrounds, and our enemy is not from nor specific country nor do they wear a specific uniform.

It would have been foolish, I think, for the federal government to let people possibly get out of prison through a habeas filing before we had an established system of tribunals and protocols for dealing with them and their special circumstances.  Unfortunately, Congress - always unwilling to take up a truly controversial issue, preferring usually to pass vague legislation and leaving the details up to the courts - drug its feet on establishing a legislation for dealing with war on terror detainees.  I’d even go so far as to say that this delay is why the President attempted to unilaterally establish a military tribunal system even though it was ultimately slapped down by the courts in Hamden vs. Rumsfeld.

But all that has changed now.  Now we have a clear system of tribunals and protocols which will allow us to deal with detainees in the war on terror.  That system does not provide access to habeas corpus relief to foreign detainees, but it does allow access for detainees who are American citizens.  All of that is clearly defined in section 7 of the MCA which states the following: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

To put it simply, citizens get habeas rights.  Non-citizens don’t.

I don’t have much of a problem with that.