pudge's Journal: Habeas Corpus

OK, so there's this thing called the Military Commissions Act of 2006. Lots of people went crazy about it because it suspended the right to appeal for alien enemy combatants.

Except no, it didn't. And I still see people saying that it did.

The MCA only suspended appeals for alien enemy combatants except as provided by Section 1005 of the Detainee Treatment Act of 2005, which says, essentially, that alien enemy combatants have the right to appeal their status determination -- whether it was correct according to policy, law, the Constitution, and the facts -- to the U.S. Court of Appeals for the DC Circuit.

There is one catch, that I can find: if you are awaiting your final status determination, you don't get to appeal under Section 1005 of the DTA (since it only applies once the final determination has been made), and you are also forbidden any other appeal under the MCA (which apply specifically to those who have their final determination as enemy combatant, or are awaiting it). I wonder if there is some other place where the government is required to come up with a status determination within a specific time period, because if not, someone could be held in that limbo indefinitely, without any access to courts.

However, other than that question mark, the rest is quite clear: if you are an alien enemy combatant, you can file an appeal in U.S. Court. If you are not (including if you were, but no longer are, having won your appeal), then you have full access to the courts.

Hysteria is fun! Facts are boring!

One point overlooked.

[Rysc]

And how do you become an alien enemy combatant? You are designated as one by the President without review. That means you, me, or anybody who he doesn't like. All you have to do is assume the president is unscrupulous, which I assure you I do.

Even if the law were technically constitutional it is against the spirit of the constitution and harms national interests long term. If we're really about promoting American values then we should be treating every criminal as an American citizen would be treated so as

Re:

[pudge]

And how do you become an alien enemy combatant? You are designated as one by the President without review. That means you, me, or anybody who he doesn't like.

False, on two key points. First, you are simply wrong, in that it is absolutely illegal for the President to designate me as an alien unlawful enemy combatant. "Alien" means noncitizen. The law is entirely clear on this point, in Section 948a, where it reads: "The term 'alien' means a person who is not a citizen of the United States."

Second, the Pre

Re:

[Rysc]

Forgive my hasty and inaccurate reply. Please consider this revision.

quoth the act: "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."

In what way does this exclude United States citizens? It doesn't say 'alien' anywhere in there. So, the President cannot dire

Re:

[pudge]

In what way does this exclude United States citizens? It doesn't say 'alien' anywhere in there.

It doesn't need to. You're looking only at the definition of unlawful enemy combatant, not where such definition is applied. Many people have made this mistake.

So here's my scenario. The President appoints a commission of sympathetic officers to examine an individual he doesn't like and tells then commission members in no uncertain terms but in a manner which cannot be proven, "You must find this guy to be an un

Re:

[cascadefx]

As for the timelines, isn't this what all the court cases were about in 2004/2005? The problem was that the US, for over a year, had held "enemy combatants" (including a US citizen) without formally charging them with any crime. My understanding (and I could be wrong) is that the situation still exists (and is now bolstered by these Acts).

So, in practice (as that's all we have to go on), we have detained people for years without final formal determination of their crimes. They are in limbo.

That appears t

Re:

[pudge]

So, in practice (as that's all we have to go on), we have detained people for years without final formal determination of their crimes. They are in limbo.

There is no Constitutional or legal requirement to charge them with crimes, if they are (properly, legally, Constitutionally) designated as alien unlawful enemy combatants. Actually, even if they are lawful enemy combatants, I believe there is no such requirement, but they do get extra legal rights at that point. This here is only about status designatio