"There is no liberty, if the power of judging be not separated from the legislative and executive powers." -Montesquieu, Spirit of Laws
The recently-enacted and eminently disgraceful Military Commissions Act of 2006 has rightly been marked as a potential turning point for our Republic. Much of the focus, especially recently, has been on the Act's purported revocation of access to the Great Writ of habeas corpus for the untold number of detainees being held through executive proclamation.
As we approach this Sunday's anniversary of the founding of our government in accordance with the Constitution, I would like to put the faults of the MCA in the context of another constitutional provision: the prohibition on bills of attainder. As demonstrated below, I believe the MCA clearly violates the Attainder Clause. Perhaps fortunately for our Constitution, the Supreme Court may soon have its chance to weigh in, as lawyers for Salim Ahmed Hamdan and Omar Khadr are prepared to offer the very same argument to the Court.
Bills of Attainder and Constitutional History
Article I, Section 9 of the Constitution states, with elegant simplicity:
No bill of attainder...shall be passed
In England, bills of attainder were acts passed by the legislature, pronouncing an individual or group guilty of a crime without a trial, and subjecting that person to capital punishment and corruption of blood. Historically, they were thus distinct from bills of pains and penalties, which functioned in precisely the same way but inflicted a punishment less severe than death. It was established early on in the United States that the constitutional prohibition on bills of attainder embraced bills of pains and penalties as well. Significantly, in reviewing the history of the Attainder Clause, the Supreme Court has held that it was included in the Constitution due to the Founders'
fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge or, worse still, lynch mob.
The framers of the Constitution were acutely aware of the dangers attendant when one branch of government overstepped its bounds or amassed too much power. As Madison put it:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
The Attainder Clause was, then, one of the most crucial elements of the Constitution, as it protected We the People against tyrannical misadventures by the branch most likely to abuse its power. By banning bills of attainder, the Constitution provided an inherent check designed to keep the legislature to its appointed task--"to prescribe general rules for the government of society"--while preventing it from attempting to apply or interpret the generally applicable rules it devised.
On several occasions, the Supreme Court has struck down laws as bills of attainder. In one such case, Cummings v. Missouri, concerned the constitutionality of amendments to the Missouri Constitution providing, among other things, that no one could engage in a number of specified professions unless he first swore that he had taken no part in the Confederate rebellion. Ex parte Garland concerned a federal statute requiring attorneys to take an oath similar to the one at issue in Cummings before they could practice in federal court. In Pierce v. Carskadon, the Court held that a West Virginia law limiting access to the courts for former Confederate sympathizers was an unlawful attainder. In United States v. Lovett, the Court struck down a section of the Urgent Deficiency Appropriation Act preventing further payment to three named federal employees as a bill of attainder. Finally, in United States v. Brown, the Court held that an act of Congress making it a crime for a member of the Communist Party to serve as an officer or employee of a labor union was a bill of attainder.
What Constitutes a Bill of Attainder?
On the strength of these leading Supreme Court cases, and others like them, it is clear that the Constitution provides a broad and dynamic protection against legislative punishment without judicial trial and that the Attainder Clause is a key pillar of the general principle of separation of powers. Quite simply (and as it has been throughout history), a bill of attainder is (1) a legislative act that (2) punishes a person or discrete group of people (3) without a judicial trial.
Significantly for our purposes, it is well-established that the "punishment" involved need not be criminal. Instead, as the Garland Court stated:
The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.
In other words, whether the act in question prescribes "punishment" is to be determined from the overall context of the situation, and not by a cramped and overly technical definition of what constitutes punishment. The Supreme Court itself has already held that denial of access to the courts is "punishment" within the meaning of the Attainder Clause, and subsequently endorsed that view once again. Additionally, the "singling out" requirement (that the act in question apply to a discrete group of people) is satisfied "if [the law] operates against a group based on past actions or status designations that cannot be changed."
The MCA is a Bill of Attainder
Against this historical and legal background, it is clear that the odious Military Commissions Act of 2006 ("the MCA") is a bill of attainder and as such is unconstitutional.
It is beyond dispute that the MCA is a legislative act and that it accomplishes its goals without judicial trial, so all that remains to be analyzed for attainder purposes is whether the MCA inflicts punishment on a readily-ascertainable group of people.
First, as to the nature of the group singled out by the MCA. By its own terms, the MCA applies to aliens detained by the United States who have been designated (by extrajudicial fiat) as "unlawful enemy combatants." Certainly, the restrictions contained in the MCA operate on the basis of a status designation that cannot be changed (indeed, the MCA works to insure that said designation cannot be changed, for instance by resort to habeas corpus). The group targeted by the MCA is at least as identifiable (and likely more so) than the group affected by the laws at issue in Cummings or Garland.
Next, as to punishment. Section 7 of the MCA purports to strip alien detainees of their right to petition for a writ of habeas corpus in U.S. courts:
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.
Stunning as it has always seemed, the MCA purports to deny aliens detained by the U.S. on the mere say-so of the executive branch of their recourse to the Great Writ, what Blackstone called "the bulwark of the British Constitution," and what has been considered for centuries to be the most effective remedy against arbitrary detention. Undoubtedly, this is punishment in any sense of the word, and it certainly fits easily within the Supreme Court's Pierce precedent, as reaffirmed by Brown. Like the West Virginia law at issue in Pierce, the MCA attempts to deny court access to a discrete group of people. Lest there be any doubt about the punitive nature of the MCA's denial of habeas rights, Trent Lott laid bare the intent behind the Act on the Senate floor:
Now we have this huge discussion about habeas corpus. Bring on the lawyers. What a wonderful thing we can do to come up with words like this. Our forefathers were thinking about citizens, Americans. They were not conceiving of these terrorists who are killing these innocent men, women, and children.
Not content to strip only habeas rights, however, the MCA goes one step further and also purports to deny detainees their rights under the Geneva Conventions, Section 5 of the MCA states:
No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
I am not aware of any case that has held that a law was a bill of attainder because it stripped preexisting treaty rights from a person or discrete group. However, it is beyond dispute that the detainees targeted by the MCA previously enjoyed rights under the Geneva Convention. Thus, it would appear that the MCA falls squarely into the category of laws recognized as punitive by the Garland Court (that is, laws resulting in "[t]he deprivation of any rights, civil or political, previously enjoyed."). Moreover, the Supreme Court has been clear that the list of "punishments" outlawed by the Attainder Clause is not closed, making the lack of any prior case recognizing the deprivation of treaty rights as an attainder punishment largely irrelevant:
Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes
The "nonpunitive legislative purposes" out is a nonstarter for the government. The purpose of Section 5 of the MCA is clearly to help the government avert future war crimes charges on the basis of its mistreatment of detainees. I suppose one who is truly cynical could attempt to spin that as "nonpunitive," but no reasonable observer would buy that argument. Section 5 of the MCA (especially when viewed beside Section 6, which "implements" a watered-down version of the Geneva Conventions) exists strictly to authorize the torture of detainees who have been designated as enemy combatants without any recourse to a court. The burden imposed by Section 5 could not be any more severe (witness Jose Padilla), and the nonpunitive purpose, if any, cannot possibly outweigh the evils invited by Section 5.
What Can YOU Do?
Don't merely sit back and wait for the courts to set things right with respect to the MCA. Please visit Elise's action diary and urge your Senators to act now to restore our Constitution.
In addition, be sure to read the other wonderful diaries in the Restoring Our Constitution series, including Jay Elias' introductory diary, Jay's diary on the lex Gabinia, OrangeCloud115's habeas diary, buddydharma's tyranny vs. democracy diary, and Major Danby's habeas diary. If you'd like to get involved, send an email to restoringourconstitution at gmail dot com for more details.