Cross posted from TomPaine
Today in the Senate Judiciary Committee the Bush administration will unveil proposed new legislation to respond to the Supreme Court’s June ruling in Hamdan v. Rumsfeld. A final version of this legislation remained concealed right up to the day before the Senate hearing. Such secrecy disarms the public-and more importantly for today’s hearing, congressional staffers who need to brief their bosses-from analyzing and understanding the draft. This secrecy, aside from some leaked drafts of the bill, should sound alarm bells about what the administration is about to propose.
It appears the legislation moves two steps back for every step forward it takes in responding to problems identified by the Supreme Court. More dangerously, the administration’s proposed legislation likely will seek to assail vital checks and balances in subtle, invidious ways that might escape Congress’ attention.
Strictly speaking, the Supreme Court’s decision in Hamdan concerned only the president’s deeply flawed and procedurally irregular military commissions at Guantánamo. Yet any legislative response is likely to sweep further than the relatively narrow matter of how persons detained in battle can be tried for violations of the law of war. Administration testimony before Senate and House committees reveals the White House’s concern with issues of larger dimension: They are quietly looking for Congress’ seal of approval on a system of expansive military detention for both citizens and non-citizens.
Most American residents would be shocked to hear that the military has power to lock them up without an opportunity to prove their innocence before an independent judge. Indeed, a 1971 law, pushed by a former federal judge and survivors of the Japanese internment, actually bars executive detention without any statutory authorization. Yet drafts of the government’s proposed military-commission legislation slyly concede precisely this unchecked lock-up power to the executive branch despite the caution embodied in the 1971 law.
The leaked draft-admittedly, one that is likely to reflect the final version only imperfectly-does state that only “enemy combatants” can be hauled before a military commission, which offers less due process than the regular criminal courts or the military’s courts-martial. In other litigation, however, the administration has taken the position that an “enemy combatant” can also be detained until the end of the conflict, even if they are found to be innocent in a military commission. That conflict, moreover, is defined as a war “between the United States and international terrorist organizations,” to use the language of the leaked draft. For all practical purposes, this entails detention without end.
The power to label individuals as “enemy combatants”-and detain them indefinitely-presents one of the most basic threats not only to elemental human liberties, but also to the democratic order. Why? Because a government that can simply banish its foes-and those it erroneously seizes-from public sight simply by labeling them as beyond the pale is not a government that labors under the rule of law.
Who, precisely, can be considered an “enemy combatant” and how the designation is made remains ambiguous. “Enemy combatant” is a phrase unanchored in international law. Government lawyers plucked it from the folds of a 1942 Supreme Court case concerning German saboteurs caught in the United States. Neither the Supreme Court, nor subsequent international law, clearly defined the term. And to date, the administration has declined to issue a final and conclusive definition.
The Bush administration’s adoption of the term has been gradual. In November 2001, President George W. Bush issued a military order in which he stated that anyone who “is or was a member of the organization known as al-Qaida” or who “knowingly harbored” an al-Qaida member could be tried in a military commission. By June 2002, the administration took the further step of invoking the term to justify the indefinite detention of a U.S. citizen initially seized on American soil. In 2004, then Deputy Secretary of Defense Paul Wolfowitz issued a definition of “enemy combatant”-but only for Guantánamo detainees, who are believed to be all non-citizens. Under the Wolfowitz definition, the government has conceded in the course of district court hearings for Guantánamo detainees, “a person who teaches English to the son of an al-Qaida member” and a “little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan” would both be subject to detention as “enemy combatants.”
Despite the sweep of this awesome power, the administration resisted detainees’ efforts to secure judicial review of “enemy combatant” designations. In 2004, the Supreme Court rejected the government’s argument that courts should demand little more than an affidavit from a government official to sign-off on a person’s detention. While the Supreme Court held that some judicial review was allowed, a governing plurality of the court seemed to allow stripped-down procedures that give the government a decisive advantage. Indeed, in the one subsequent judicial challenge to “enemy combatant” designation in the federal courts, a case in South Carolina federal district court involving a Qatari citizen designated as an “enemy combatant” while studying in the United States, the court has still not allowed the detainee a hearing.
The military commission legislation to be presented today will likely speak to the scope of the term “enemy combatant,” but not the process for designating them-because the administration’s position is to press for as little process as possible. The draft legislation contained a definition as hazardously capacious as the Wolfowitz definition: someone who “engaged in hostilities against the United States” and has “committed an act that violates the law of war.”
At first blush, this appears to be a narrow definition, containing only those who in fact are implicated in some serious crime. But any limit to that definition vanishes upon closer examination of the legislation. For one of the “war crimes” listed in the statute is conspiracy. Because conspiracy has long been criticized as a vague and open-ended concept that is amenable to abuse by prosecutors, it has not traditionally been part of the law of war. The situation at hand shows why. To allow individuals to be designated “enemy combatants” based on the allegation that they have some part of a terrorist “conspiracy” is to return to the Wolfowitz definition. It is to legitimate the detention of the English teacher and the little old lady in Switzerland on the minimal-and entirely blameless-acts they committed.
Does Congress really want to give the executive branch such untrammeled power? Will this power be deployed wisely? Experience to date suggests that the answer is surely no to both questions. To be sure, it is right and proper that persons who are detained on an actual (rather than metaphorical) battlefield while fighting should be subject to prosecution for war crimes. But any definition of “enemy combatant” that stretches beyond the battlefield ought to be rejected out of hand.
Aziz Huq: “We’re All Enemy Combatants Now” (PDF)