Friday, December 08, 2006

Military Commissions Act: A Precursor To Tyranny?

by Chuck Baldwin December 5, 2006
In an interview with nationally syndicated radio talk show host Alex Jones, Rep. Ron Paul of Texas recently discussed President Bush's support for the Military Commissions Act. During the interview, Paul said that "the law officially allows for citizen concentration camp facilities."
Paul also warned that "the Military Commissions Act and the Defense Authorization Act . . . essentially wipes out Habeas Corpus."
Paul continued by noting, "Right now we don't have concentration camps, but . . . the authority has been given so that concentration camps can come without Habeas Corpus." He then said, "If they can lock you up, what good is freedom of speech or what good is a gun?"
Couple the implementation of the Military Commissions Act with the already-passed USA Patriot Act and all the legalities necessary to completely eviscerate America's constitutionally-protected liberties are in place. Think of it. Without firing a shot or dropping a bomb, President George W. Bush has done more to strip the American people of their liberties than all the world's despots and dictators combined!
Consider further the recent statements of former house speaker Newt Gingrich. According to the (Manchester, NH) Union Leader, "Former Speaker of the House Newt Gingrich yesterday [Monday, Nov. 27] in Manchester said the country will be forced to reexamine freedom of speech to meet the threat of terrorism.
"Gingrich, speaking at a Manchester awards banquet, said a 'different set of rules' may be needed to reduce terrorists' ability to use the Internet and free speech to recruit and get out their message."
Of course, Mr. Gingrich did not say how he plans to reduce people's free speech rights. Neither did he say a word about the fact that our greatest potential for terrorism is coming in the form of an invasion of illegal aliens across our southern border, and that it has been the words and policies of one George W. Bush that have mostly contributed to this threat.
Will someone please tell me how expunging the free speech of the American people is going to make the United States safer? And, pray tell, why are our brave troops fighting and dying in Iraq and Afghanistan, ostensibly to "promote democracy," if the same political leaders who sent them to the Middle East are working to shrink democracy here at home?
Ladies and gentlemen, please wake up! Under the leadership of President George W. Bush, rights and freedoms that have been lost to you include your right to an attorney, your right to know the charges being levied against you, the right to a speedy trial, the right to trial by a jury of your peers, the right to not be subjected to torture, the right to not have your home and personal items searched and seized without warrant, the right to not have your personal conversations (including letters and email) intercepted without court order, and the right to not incriminate yourself, just to name a few. And now we learn that our government has authorized and is planning to build "concentration camp facilities."
Furthermore, just because you or I have not yet been personally subjected to this tyranny, does not mean that we won't be! The seeds are already planted; the die is already cast. The time to act is not when you are being carted off to an "undisclosed location." By then, it is too late.
Thank God for Congressman Ron Paul. If it weren't for him, there would be practically no one on Capitol Hill willing to sound the alarm for the American people. I wish someone could convince him to run for President of the United States on the Constitution Party ticket. The GOP would never support his candidacy for president, but the CP would welcome him with open arms. And, given the American people's frustration with both major parties, a serious third party challenge is very possible in 2008.
In the meantime, the power establishment in Washington, D.C., continues to undermine our Constitution and fritter away our freedoms.

NOTE: I was suspect, so checked the Act language itself. Sure enough, those that would have us believe it is meant for "alien" (non-US citizens) only, are missing that oddly in one key section the word alien is used. However, in another section which lays out the definition of "unlawful enemy combantants" the language is much more broad and does not use the narrowing clarifier of "alien."

A U.S. citizen may be an unlawful enemy combatant under section 948a.
Section 948a(1) defines an unlawful enemy combatant as
"(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."

Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants."
What confuses and allows some to claim citizens have nothing to be concerned further about is this clause, where again we see
Sec. 948c. Persons subject to military commissions`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.'

So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens.
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.
Hamdi v. Rumsfeld states that the President had authority to detain enemy combatants according to the laws of war based on a fairly narrow definition of the term "enemy combatant":
for purposes of this case, the "enemy combatant" that [the government] is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.The MCA greatly expands the definition of enemy combatants, because it greatly expands the definition of "unlawful enemy combatants." If the government may detain any enemy combatants, a fortiori it may detain unlawful ones. The new definition is fuzzy: it includes citizens who "materially support" hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.
Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of "material support" in section 948(1)(i) would violate the Due Process Clause or the First Amendment.
But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is. The problem with 948a(1) is that it may place Congress's stamp of approval on a definition of "unlawful enemy combatant" that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply.
One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.
However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.

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