On June 7, the Senate Judiciary Committee passed an important bill to restore habeas corpus, the Constitutional right to challenge government detention in court, by a vote of eleven to eight.

Habeas corpus was revoked by last year's Military Commissions Act, which has been assailed as unconstitutional and un-American by leaders across the political spectrum. The June 7th habeas bill was backed by the Judiciary Committee's Democratic Chairman, Patrick Leahy, and its Republican Ranking Member, Arlen Specter. "The drive to restore this fundamental right has come from both sides of the aisle," said Sharon Bradford, an attorney at the bipartisan Constitution Project, in response to today's vote. "Restoring America's commitment to the rule of law is not a partisan cause; it is a patriotic one," she added.

Questions for debate:

1. Can American Citizens lose their Habeas Corpus rights under the Military Commissions Act of 2006?

2. How is it determined that someone is an enemy combatant without Habeas Corpus?

3. Can any persons on American soil be declared an enemy cobatant under this Act?

No, they can not. Only ALIEN enemy combatants could lose their right to habeas corpus. The MCA of 2006, and the tribunals, were set up to try ALIEN enemy combatants and allow the accused to present evidence and have representation.

Except as provided in section 1005 of the Detainee Treatment Act of 2005, 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.” §1005(e)(1), 119 Stat. 2742.
On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal.

Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.



Again, HC rights are not suspended on appeal for enemy combatants. It is suspended on apeal for ALIEN unlawful enemy combatants. According to the MCA of 2006:

‘‘§ 948c. Persons subject to military commissions‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter

Lawful Enemy combatants, who you are referring to, are not even subject to the MCA. The MCA does not have jurisdiction over them. They are entitled to a court martial, which is covered under the UCMJ, which is law written by congress. HC rights can not be suspended under Court Martial.

‘‘(b LAWFUL ENEMY COMBATANTS.—Military commissions under
this chapter shall not have jurisdiction over lawful enemy combatants.
Lawful enemy combatants who violate the law of war are
subject to chapter 47 of this title. Courts-martial established under
that chapter shall have jurisdiction to try a lawful enemy combatant
for any offense made punishable under this chapter.
http://frwebgate.access.gpo.gov/cgi-bin/ge...3930enr.txt.pdf



Certainly. But that does not mean they automatically lose Habeas Corpus rights on appeal. Only ALIEN unlawful combatants are subject to losing HC rights on appeal.

Habeas Corpus is not even addressed until chapter 7 of the MCA of 2006. Here is what it says:

‘‘(e)(1) 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.
‘‘(2) Except as provided in paragraphs (2) and (3) of section
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801
note), no court, justice, or judge shall have jurisdiction to hear
or consider any other action against the United States or its agents
relating to any aspect of the detention, transfer, treatment, trial,
or conditions of confinement of an alien who is or was detained
by the United States and has been determined by the United
States to have been properly detained as an enemy combatant
or is awaiting such determination.’’.

At what point is the accused guaranteed the right to present proof before they are declared an 'Alien Unlawful Enemy Combatant'?

Please post the excerpt from the Act which details this provision.


Failing that, there is no guarantee that anyone, American or otherwise, has the opportunity to represent their own interests. Therefore it becomes a fact that an American can lose their right to Habeas Corpus and become imprisoned indefinitely.

Under the Military Commissions Act, George Bush and ONLY George Bush has the power to declare someone an enemy combatant. It can be an American citizen, naturalized and born here. They can be put in prison without having any charges filed against them for an indefinite period of time and without the right to got to court to find out what the charges are. Given the last 4 years of this President, I'm pretty sure it's safe to assume some form or torture would be involved.

I apologize. Your question to me is not clear. Proof of what?



That is not true. Under the MCA of 2006 a military tribunal is called. The accused has the right to an attorney, to present evidence, and to appeal to the DC appeals court.

An Alien unlawful combantant can not be picked up, locked away, and held without HC rights indefinitely without a "trial".

Proof of anything, but we'll go with 'citizenship'.





Ok, what is the mandated period of time within which an attorney must be appointed?

The entire MCA of 2006 is the process which entitles one to present proof. From the act itself:





http://www.govtrack.us/congress/billtext.xpd?bill=s109-3930




Since the MCA of 2006 uses Chapter 47 of the UCMJ to set up the rules for these commissions I will say within 6 months:
( If the President fails to convene a general court-martial within six
months from the preparation of an application for trial under this article,
the Secretary concerned shall substitute for the dismissal order by the
President a form of discharge authorized for administrative issue.

I was very excited.... for a moment or so.

Twenty seconds to be exact.

I was slightly titillated When I read this;




But then I re-read your posted excerpt;



I know I don't have to hash this out.

So... "What is the period of time within which counsel must be assigned to the accused under the MCA 2006?"

i can't back the big guy on this one sorry ... this bill is not cool and is almost definately unconstitutional ...

e)(1) 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. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

That was upheld by our court system:

Except as provided in section 1005 of the Detainee Treatment Act of 2005, 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.” §1005(e)(1), 119 Stat. 2742.
On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal.




ALl right. There is nothing in writing that specifies a time.

Right, and that there is the crux of the issue. Without affording the accused the opportunity to present evidence on his behalf, or providing counsel, the government can hold anybody indefinitely, including an American citizen.

Again; since there are no provisions which compel the government to provide counsel or opportunity for the accused to defend themselves in any guaranteed timeframe, they can legally hold anyone indefinitely.

The Military Commissions Act of 2006 is so full of legal black holes that it is an affront to our Constitutional Democracy.

Thanks for helping to illustrate this.

I disagree. To be determined an Alien Unlawful Combatant a tribunal has to be convened to proove that you committed one of the crimes outlined in `Sec. 950v. Crimes triable by military commissions". These crime mirror what the geneva conventions outline.

Also, once the commission reaches a final decision the accused has 20 days to:

`(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which--

`(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

`( the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.


In addition the accused is appointed counsel:

`Sec. 950h. Appellate counsel
`(a) Appointment- The Secretary of Defense shall, by regulation, establish procedures for the appointment of appellate counsel for the United States and for the accused in military commissions under this chapter. Appellate counsel shall meet the qualifications for counsel appearing before military commissions under this chapter.

`( Representation of United States- Appellate counsel appointed under subsection (a)--

`(1) shall represent the United States in any appeal or review proceeding under this chapter before the Court of Military Commission Review; and

`(2) may, when requested to do so by the Attorney General in a case arising under this chapter, represent the United States before the United States Court of Appeals for the District of Columbia Circuit or the Supreme Court.

`© Representation of Accused- The accused shall be represented by appellate counsel appointed under subsection (a) before the Court of Military Commission Review, the United States Court of Appeals for the District of Columbia Circuit, and the Supreme Court, and by civilian counsel if retained by the accused. Any such civilian counsel shall meet the qualifications under paragraph (3) of section 949c( of this title for civilian counsel appearing before military commissions under this chapter and shall be subject to the requirements of paragraph (4) of that section.


So, even if one can be classified an ALIEN UNLAWFUL COMBANTANT without a trial, as you are presenting, the accused may appeal the deision within 20 days of the final determination and will be affored counserl before the Appelate Court:

`© Representation of Accused- The accused shall be represented by appellate counsel appointed under subsection (a) before the Court of Military Commission Review, the United States Court of Appeals for the District of Columbia Circuit, and the Supreme Court, and by civilian counsel if retained by the accused. Any such civilian counsel shall meet the qualifications under paragraph (3) of section 949c( of this title for civilian counsel appearing before military commissions under this chapter and shall be subject to the requirements of paragraph (4) of that section.

hyes btu you can be held indefinately until they decide to hold the status board...

it very openly says that those whose status = pending can be held.

Just had it happen to me.

A couple hours ago I had nearly finished a response and my Win XP spontaneously shut down on me. WTF? That's why I try to use MS Word to compose first.

Lucky it wasn't too complicated.



Ok, let's take a look at these gaping holes (again);



Hole #1 - Within what timeframe must the Court of Military Commission Review convene?
Hole #2 - Within what timeframe after determination of status must the CMCR hand down their decision?

Addended; Ok, it's subjective, but the operative phrase is 'promptly <...> after the announcement of the sentence'. (950b. sub. a.) From what I understand of legal definitions, "Promptly" doesn't allow the passage of months… but with the levels of incompetence we’ve seen and the way these people miss deadlines, I don’t have a great deal of faith they’ll deliver on that one. Therefore we have to find a timeframe under which 'Hole # 1' must be addressed. I haven't found one.

Now I might have missed something, but the MCA states that the determination of enemy combatant status is made first by a 'Combatant Status Review Tribunal' before counsel can even be assigned. At that point, after ‘Alien Unlawful Combatant’ status is determined, there is no recourse until the CMCR is convened. That, apparently, is the biggest hole in the law.

But if the accused doesn’t want to wait around;



That’s right, if you don’t want to wait for the CMCR to convene, you can rescind your ‘right’ to the hearing and file the appeal. The US District court of appeals DC then determines whether or not the law was followed by the CMCR… before the CMCR is even convened. THEN the CofA is restricted to;



Well, that sounds ok… right up until we recall this little tidbit;

That means that once you waive your right to a hearing to get an appeal, the Secretary of Defense has final say on whether you get a new hearing no matter what the CofA rules..
Once you’ve waived that right to a hearing, the Secretary of Defense is under no obligation to ever allow you a hearing again.
That’s pretty scary considering that, at this point, you will not get the opportunity to prove your citizenship until Amnesty International breaks you out.



Even then, there’s no guarantee that a Tribunal will be convened, that’s the biggest flaw.

I’m not saying it’s an easy loophole to exploit, but it’s there. This legislation was cobbled together in haste before the ’06 elections, and it’s obviously full of holes.

The Combat Status Review Tribunal is a trial:

Combatant Status Review Tribunal Order Issued
The Department of Defense announced today the formation of the Combatant Status Review Tribunal for detainees held at Guantanamo Bay, Cuba. This tribunal will serve as a forum for detainees to contest their status as enemy combatants.

Combatant Status Review Tribunal Order Issued
Detainees held at Guantanamo Bay will be notified within 10 days of their opportunity to contest their enemy combatant status under this process. The tribunal process will start as soon as possible. Detainees will also be notified of their right to seek a writ of habeas corpus in the courts of the United States. Habeas corpus is a writ ordering a person in custody to be brought before a court.
An individual tribunal will be comprised of three neutral officers, none of whom were involved with the detainee. One of the tribunal members will be a judge advocate and the senior ranking officer will serve as the president of the tribunal.
Each detainee will be assigned a military officer as a personal representative. That officer will assist the detainee in preparing for a tribunal hearing. Detainees will have the right to testify before the tribunal, call witnesses and introduce any other evidence. Following the hearing of testimony and other evidence, the tribunal will determine in a closed-door session whether the detainee is properly held as an enemy combatant. Any detainee who is determined not to be an enemy combatant will be transferred to their country of citizenship or other disposition consistent with domestic and international obligations and U.S. foreign policy.
This tribunal does not replace the administrative review procedure announced earlier this year.

Here is a list of CSRT's from 2006:
http://www.dod.mil/pubs/foi/detainees/csrt/

I did not read them.

Still no compunction.

This from 2004 may be of interest;



http://www.globalsecurity.org/military/fac...o-bay_legal.htm

There is still nothing in the MCA 2006 which guarantees the right to bring evidence before the CSRT.

I looked around the web to find where your above post was derived but came up short.

Here is the pertinent excerpt;
"Detainees held at Guantanamo Bay will be notified within 10 days of their opportunity to contest their enemy combatant status under this process. The tribunal process will start as soon as possible. Detainees will also be notified of their right to seek a writ of habeas corpus in the courts of the United States. Habeas corpus is a writ ordering a person in custody to be brought before a court."

I can't find anything that shows force of law behind that excerpt, and I really don't trust the phrase "as soon as possible" either considering that really is the crux here.

No one should trust legislation that contains vague language, such as "may" or "as soon as possible."

Words mean things.

Legislation needs to be specific as to what it does and does not cover. From what I have seen on the Military Commissions Act, it does make it possible to circumvent Habeas Corpus for United States Citizens. There appears to be loopholes, and the entire act is alarming for this reason.

I have not seen anyone make a reasonably specific case that this is not so.

Could you post these loopholes?

Hunter Rose:


It has been posted. Numerous times. It is in the last section of the MCA of 2006.

I just did. Language such as "may" and "as soon as possible," as I just cited in the very post you question is ambigous language. "As soon as possible" does not define anything remotely like a specific amount of time, therefore, it renders itself meaningless, and unenforceable. You yourself have already agreed there is no mandated amount of time in which a lawyer must be appointed.

And as Hunter Rose just pointed out, above, once you waive your right to a hearing to get an appeal, the Secretary of Defense has final say on whether you get a new hearing no matter what the CofA rules, based on the ambiguoity of the sentence "If the Court grants a detainee's petition for review, the Secretary of Defense may conduct a new Combatant Status Review Tribunal."

The word "may" is inappropriate, ambiguous language, and creates a legal loophole. How many more do you need pointed out?





If it has been posted numerous times, it should be no problem to post the specific part that adresses the question. Please do so.

1) A loopHOLE is called a loopHOLE because it is something that isn't there. Nowhere does that heinous piece of 'legislation' guarantee the right of the accused, American or otherwise, the opportunity to prove they don't belong there in any reasonable timeframe.

- There's your 'loophole'.





- Excellent. Please post it then.

Let me get this straight, just so I understand you properly. In order for an american citizen to lose HC rights a number of events have to happen:

1. An american citizen is arrested and can not proove immediately they are a citizen.

2. The arrested citizen waives the right to a hearing.

3. The arrested citizen waives the right to an appeal.

Is this the argument you and hunter are presenting?

No.

Well, that is the ONLY way, and it is a very, very, outlandish scenario, that an american citizen could be declared an Alien Unlawful Combatant AND have HC suspended. As a matter of fact, if the citizen DOES NOT appeal, it is the citizen that is jepeodizing his right to HC.

Yes Woodrow, so far you've been asked twice to produce the language of the law that guarantees you will get the opportunity to defend yourself within a specific timeframe. Make that three times.



You have it somewhat backwards.

Once you've decided that you no longer wish to wait for the Military Commission Review Tribunal, you may waive the right to the hearing you aren't already guaranteed within a specific timeframe.

Once you wave that right, the MCA provides for only one appeal, only for the chance to get the military tribunal hearing, and still without a specific guarantee time of appointment for representation. Chances are, you will get some representation at the appeal, but that still doesn't matter because the Sec Def is not bound to allow you another hearing... ever.

Now, I posted this;


And you've been asked to back this up;


By me;


And by fbwc;


Now, I understand that perhaps the example you suggest has been posted with pink neon around it, and I apologize that I may have missed it, but could you please be a sport and repost it for us.

Otherwise someone might get the crazy idea that you're trying to play down the issue with fantastic excerpts.

No it isn't.

You have not made a case for that. Please do so.

1. Can American Citizens lose their Habeas Corpus rights under the Military Commissions Act of 2006?
The answer is clearly no. The first sentence of the Act describes what is meant by "Unlawful Enemy Combatant"



These definitions are key to understanding the Act.



Emphasis mine. The use of the term "alien" restricts this section of the Act to non-citizens. US citizens are not subject to the Act and therefore cannot be denied habeus corpus rights under the Act.

2. How is it determined that someone is an enemy combatant without Habeas Corpus?

Again, it is right there in the Act.



There is also an entire subsection on Habeus Corpus matters:


Again, the key word is "alien".

3. Can any persons on American soil be declared an enemy combatant under this Act?

This act does not apply to lawful enemy combatants or non-aliens. However, in the case of an alien unlawful combatant (i.e. a terrorist) the answer is yes. As I read it, this act only applies to people who are detained by the military and not by civilian agencies.

Here is what I found at the Cato website:

Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.

First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.

But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.

Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission.

My conclusion: A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.


That was the opinion of a Robert E. Levy, who appears to be a litigation attorney.

Your conclusion does not match your quoted source. The MCA does not apply to non-aliens (i.e. citizens). You said this yourself. Yes, citizens can be detained under other (existing) laws -- treason, sedition, terrorism, murder, etc.

The MCA establishes the procedures for trying alien unlawful enemy combatants via military tribunal. U.S. citizens have other procedures already in place -- the courts and the UCMJ.

As they say; "What looks good on paper..."

The crux of the issue is not whether the act states how it does or does not apply, but how it establishes whether it does or does not apply.

Unfortunately, the act is devoid of any guarantee that a person will have the opportunity to represent that they are an American citizen in a timely fashion and without snags or loopholes.

See here;



Within what timeframe from detention must the Combatant Status Review Tribunal be convened? – I have found no such provision.

Is the detainee guaranteed representation at the CSRT? -I’ve found no such guarantee.

Once declared an ‘Alien Unlawful Combatant’, what recourse does the detainee have?

Now HERE’S a scary little phrase right here;



That phrase right there means ‘you can’t do anything whether you’ve been declared an AUC or if you’re still waiting to be declared an AUC.

Again;


No, the key phrase is ‘or is awaiting such determination’.

That’s right, you’ve been stripped of

recourse even before the government declares you an alien unlawful enemy combatant.

Now, one more important question;

Does the CSRT have to prove you are an Alien, or do they have to find you are an Alien?

Then we’ll get to the good stuff…

Sorry Hunter Rose, but you are jumping to wildly speculative conclusions here.

We have examples of what happens to Americans who are unlawful combatants: John Walker Lindh and Yaser Esam Hamdi. Lindh was captured in Afghanistan, was clearly an unlawful combatant, was returned to the US and tried in the federal courts. He was indicted by a grand jury and convicted in a civilian court. Hamdi was originally held at Camp X-Ray (Gitmo) until it was learned he was a US citizen. At that time he was transferred to the US civilian court system and subsequently transferred back to Saudi Arabia (where he is also a citizen) on the condition that he renounce his US citizenship.

Hamdi vs. Rumsfeld is the very basis of excluding US citizen from the MCA. The USSC decided that a neutral arbitor was required to determine who was an unlawful enemy combatant. That arbitor, in this country, is the court system. That is where the MCA comes in: a system by which enemy combatants can be dispositioned as lawful or unlawful. The outcome of Hamdi was the military tribunal system.

Rasul v. Bush is the basis of the MCA. The US Judiciary has no jurisdiction in cases involving foreign nationals on foreign soil, including wrongful imprisonment cases (i.e. habeus corpus).

Taking these together, US citizens are not subject to the MCA and the judiciary has no jurisdiction in foreigners on foreign soil. Hence, the MCA and military tribunals.

So my questions aren't good enough to answer?

The devil is most certainly in the details my friend, or in this case... a lack thereof.

You see, if one is not afforded the opportunity to prove one is an American citizen, then he or she becomes subject to the MCA. You noticed, I hope, that once you are detained, according to the excerpts you provided, you have no right to Habeas Corpus.

Let's go over it again, and hopefully you will address the specifics this time;



Thanks for the consideration.

That is not correct. Habeas Corpus is not denied, or suspended, until AFTER a tribunal and an appeal has been made to the DC Court of Appeals.

I'm going to assume that you did not deliberately misquote me;


Leaving off "You noticed" completely changes the meaning of the statement. Please be more careful.

Meanwhile, if what you are saying is that once detained you have the right to a writ of HC before your CSRT, I would like to see the pertinent excerpt.

Hunter Rose, you are asking me (or us, perhaps) to refuts a hypothetical which flies in the face of known history.

You throw out the hypothetical that I, as a US citizen and Ohio resident, were snatched off the street I would not be given the basic consideration of whipping out my driver's license or passport.

Meanwhile, we have two real life cases of the US military turning over captives to the civilian authorities. Both of these cases were before the judicial process was softened a bit. The history does not match up with your hypothetical.

The rules are clear: US citizen are guaranteed certain rights and aliens are not. There is very little burden of proof to demonstrating US citizenship: birth certificate, passport, Social Security card. In addition, anyone on US soil is also guaranteed certain due process rights, including habeus corpus.

To answer your hypothetical directly:

Does the CSRT have to prove you are an Alien, or do they have to find you are an Alien?

Neither. A confinee can assert his rights, based upon citizenship. At that point, any court (presumably military, since civilian courts have no jurisdiction overseas) will do a fact finding to determine whether the detainee is to be processed under the military tribunals or under civilian laws. Even if they are subject to miiltary jurisdiction (i.e. aliens) they may not be unlawful combatants, they may simply be POWs.

Lovely, and thank you for considering this.

Here's some 'known history';