More On The Military Commissions Act
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.
