This is the last of four diaries on the Military Commissions Act of 2006 ("MCA") I've written as part of the Restoring Our Constitution series, organized by Jay Elias. Thursday's Part 1, on "jurisdiction stripping," is here. Part 2, analyzing the expansion of executive power, appeared on Friday. The third, analyzing most of the changes proposed to the MCA, appeared yesterday.
Today's diary starts with some social psychology, then looks at the one substantive section of proposed reform legislation S.576 that I didn't address yesterday: Section 2, which defines the critical legal term "unlawful enemy combatant." The question at hand: are American citizens themselves potentially subject to the MCA? Have we truly gone that far? I'm afraid that we have.
9. "It will get fixed before it gets really bad"
I'll return to discussing the MCA momentarily, but because that chapter ends with a flourish and this one does not, I want to start with an aside on how we cope psychologically with threats like the threat of the loss of habeas corpus.
Before I was a political scientist, before I became an attorney, even before I became a blog bum, I was a social psychologist. That field is in some ways still closest to my heart. (You never forget your first graduate degree....) I was initially involved, in the early 80s, in a field that came to be called "peace psychology," which among other things was trying to demonstrate scientifically what everyone knew was true: that the looming thread of nuclear war was, even prior to the onset of hostilities, causing people serious psychological harm.
We looked for data to support that hypothesis. And we looked. And looked. And finally, somewhere around 1986, everyone looked up and realized the same thing: it simply wasn't true. People were generally not that freaked out about the threat of nuclear war. Some people were, but they were a small proportion of the population, and as I recall 20+ years later we were never able to get good evidence as to the direction of causality between such despair and the many bad somatic and behavioral measures with which it was associated. Many more people (in the high school population I studied) expressed concern about the threat of nuclear war, but this variable was barely correlated at all with the experience of despair over the prospect. Actually, it was correlated with many positive things like interest in the world and achievement.
Based on this experience, I made the study of how people respond psychologically to collective threats my primary research area. Looking at political problems was interesting -- hence my eventual shift to political science -- because people could not solve them by themselves (although they might be able to buy their way out of them, as with bottled water.) So both one's own ability to cope with the problem and one's estimate of society's ability to cope with it would affect one's own estimates of threat, and psychological need to defend against it.
My dissertation dealt with the threat of water pollution. I gathered all of the theories I could find that might indicate how people would react to the threat of local water pollution, constructed measures that would capture those possibilities, and then gave different groups of subjects different information about the severity of the local, and national, water pollution problem (to vary how much people would feel personally in the crosshairs.) A lot of the models of defense mechanisms came from Freud -- still, to me, the most useful part of his work -- and some came from other sources. I mostly found a whole lot of nothing, perhaps due to limitations of my own abilities as an experimenter. But there was one reaction that jumped out as a more likely to be endorsed when people were under greater stress.
This view was not simple denial of the problem. Abject denial is a fragile way to defend oneself, too subject to being battered by contrary evidence. It was not deferral of responsibility, believe that one was personally exempt, or a translation of anxiety into an activist inclination. It was, so far as I recall, something without a theoretical pedigree, something I through in there myself.
"Yes, it's a problem, but people will take care of it before it gets bad." Denial of proximate threat.
In other words, our primary way to defend psychologically against a collective threat, where a coordinated political response would be necessary, was hope. This acknowledgment of threat, but faith that smart people would find a way around it in time, is what allows people to get through their days without getting exercised about a problem. To some extent, this is merely a convenient belief. It's still a form of denial, and still convenient in that it doesn't require much work. But unlike abject denial, it's a harder psychological defense to surmount.
And I have to admit, I feel this defense present in my psyche as well as I think about habeas corpus. (See, I finally came back to the topic!) By the end of today's diary, you will see that I believe that this law can, honestly, be used against U.S. citizens like me and many of you. And yet the mind rebels at that notion. Part of me believes that the people that govern us cannot be that evil. Part of me believes that someone, somehow, is going to step in and stop them if they are.
But maybe I -- and you -- are the ones who will have to step in and do so. I don't think that this is a time for complacency. As you read the diaries in this series, and particularly the chapter below, ask yourself one question: "why was this law written this way?" It didn't have to be written this way. Why did they choose this language, this structure?
I think that it is time to be afraid. We cannot let the corrosive effect of hope dull our sense of urgency.
To get someone to cope with a problem, psychologists know, you need both to heighten their perception of threat and ensure that they have a sense of efficacy -- the ability to solve the problem. (It helps if both are reality-based, of course. Making a false claim of threat weakens the threat response; imparting a false claim of efficacy squanders one's credibility.) The sense of efficacy you should have comes from the action items in this series and the knowledge that the Democrats -- those lumbering old Democrats that we often love to criticize -- understand the problem and are trying to do something about it; that is what Senate bill 576 is about. We can rouse the public about this problem if we marshall our facts and our arguments.
So the rest of this diary has to do with how threatened you should feel, even if you are an American citizen, by this misbegotten law. As you read on, you may want to keep in mind that this new judicial system, composed of handpicked judges who are beyond the effective control of our constitutional order will be trying people for crimes such as this:
950v(b)(26) WRONGFULLY AIDING THE ENEMY- Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.
What does that even mean? How broad is the scope of the crime? What counts towards it? We don't really know. For now, let's focus on those words at the very beginning of the definition: "Any person subject to this chapter."
10. "Yes, yes, but what has any of this to do with me?"
What you've read in my four diaries, and in the many others that are part of this series, is terrible, terrible news for anyone who could be accused, rightly or wrongly, of being an unlawful enemy combatant. And if you have friends who are here on visas, here as permanent residents, here as asylees or asylum applicants, or (it should go without saying) here illegally, you can see what peril they are in. But, if you're an American citizen, you may feel that you personally are insulated from all of this. If so, this is the part of the bill you're relying on.
Sec. 948c. Persons subject to military commissions
`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
That would seem to exclude citizens -- or does it? Does the fact that an alien unlawful enemy combatant is subject to military commissions mean that a non-alien unlawful enemy combatant is not subject to them? There's a legal maxim called exclusio unius est expressio alterius that would suggest so. This is the rule that says if you see a sign that says "No parking on Sundays," you can assume, absent other explicit notification, that you can park there on other days. But it's not always conclusive. And if you read Patriot Daily's diary in this series -- by the way, go read it, because it is a great companion to this diary -- you'll see that the government is not acknowledging that this maxim applies. (By the way, does "not subject to military commissions" mean "not subject to Combat Status Review Tribunals ('CSRTs')" either? Does "not subject to trial" rule out being held on the basis of a CSRT's initial determination? They've worded that section rather oddly when you think about it, haven't they? And it's not like they didn't have time to come up with exactly the language they wanted.)
So we can't rest easy yet. And that is why I have saved the worst news for last. Let's go back and take a look at the section of the Restoring the Constitution Act that I skipped in yesterday's diary.
Section 2 of the bill amends 10 U.S.C. 948a(1) to define "Unlawful Enemy Combatant" as:
an individual who is not a lawful enemy combatant and--
`(A) who directly participates in hostilities in a zone of active combat against the United States; or
`(B) who--
`(i) planned, authorized, committed, or intentionally aided the terrorist acts on the United States of September 11, 2001; or
`(ii) intentionally harbored any individual described in clause (i).
The term is used solely to designate individuals triable by military commission under this chapter.
That doesn't sound too unreasonable. You'll be surprised when you see how the law currently reads, though. Let's have a look at the act itself. (Because searches on the government's legislation-tracking Thomas system expire, I've linked to a Google search; find the Thomas search results, click on it, choose the "enrolled bill" (option 3 at present), and then click on "Printable Display.") Like most such acts, it starts out with definitions, and the first one is a doozy.
Section 948a(1) defines the most difficult of all terms right out of the gate. 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 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.
Take a moment to fully appreciate this one-two punch. I will bet by the time you're done with this diary, you'll agree that it's even worse than you thought.
In law, you have to be careful about noting the worst possible way that a sentence with multiple parts (e.g. "A or B that C or D") can be read. You look at "A that C," "A that D," "B that C," and "B that D," to see if any of them put you in peril. So let's take this apart.
- Have you "engaged in hostilities ... against the United States"?
Probably not. Posting diaries at DKos probably doesn't count. We hope.
- Have you "engaged in hostilities ... against ... [the U.S's] co-belligerents"?
Did you skip right over that term "co-belligerant" when you first read the paragraph? If so, don't worry, it's an easy mistake to make. What should be going through your mind right now is: "what the hell is a co-belligerant?" Well, go back and look at the definitions under the current law. Right under section 948a(1)(B), you'll find the definition:
the term `co-belligerent', with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.
Got chills yet? Me too. I hadn't even noticed that definition before starting this diary. Now we still need to figure out what "hostilies" means, but now the target of those hostilities can be
- any State ... directly engaged with the United States in hostilities ... against a common enemy,
- any armed force ... directly engaged with the United States in hostilities ... against a common enemy,
- any State ... directly supporting hostilities against a common enemy, or
- any armed force ... directly supporting hostilities against a common enemy.
Yikes. I don't even know what "directly supporting hostilities against a common enemy" means. It could mean logistical support -- or it could mean as little as diplomatic support. Who would decide? You're not going to like the answer: the Combatant Status Review Tribunals ("CSRTs") doing initial screening and the military commissions would probably decide what that means. Aren't you glad you haven't been involved in hostilities against any State or armed force -- just in case it turns out it has a common enemy with us? (By the way, this category would apparently include Israel, Saudi Arabia, Syria, Iraq, and Iran, if you take the wording seriously. Israel has opposed them all, and they all have opposed each other, at least occasionally making common cause with us. But don't worry, the government will exempt itself from this rule, no doubt. Cheney is safe.)
Well, at least that should be the worst of it, right? No. It gets worse. Onward.
- Have you "purposefully and materially supported hostilities against the United States"?
"Purposefully and materially supported"? What? Well, "purposefully" probably means something like "knowingly." That is, if you gave support to a person or organization without knowing or having reason to know that they were engaged in hostilities against the United States, you're probably OK. (Who decides that, though? Why the CSRTs and military commissions, of course. Isn't it nice how that works?) "Materially" means giving support that is significant, that matters. But as Patriot Daily explains in her diary in this series, the government has been pushing in many areas essentially to read the concept of materiality out of the law. That means a penny's worth of support could leave you just as guilty as a billion dollars' worth, if they get their way.
That leaves the question of what "hostilities against the United States" means. Armed combat? That would be bad. A terrorist strike? Bad. Some "Earth First" or PETA monkeywrenching with a federally supported lab? Gee, that doesn't seem right, but maybe they'll try to shoehorn that in. (Bear in mind what that means if they do. They could try to that such cases out of our court system altogther and have them tried in a separate, private executive branch military judicial system. Yes, for environmental or animal rights activists. Will they try? No one who knows is saying.) A sit-in at the federal building? Huh? Could non-violent protest be considered hostilities against the United States? No way, you might say -- the courts would stop them!
Except that the courts would not have jurisdiction. Jurisdiction stripping, remember? Under this law, no one stops these guys until they run out of gas.
Well, at least it can't get worse than that, you may think. Sorry, it does. Let's connect the last set of dots in this paragraph.
- Have you "purposefully and materially supported hostilities against ... [the U.S's] co-belligerents"?
Oh, sweet God, please make it stop. This isn't really part of the law, is it? Still not knowing what "hostilities" means, have any of us "supported" hostilities (does verbal encouragement count?) against anyone with whom the U.S. has a common enemy? I hope not, because that is part of the law. That is how broadly this law can sweep people -- with no clear exception made for citizens -- into the category of "enemy combatants." That is how bad this law gets.
Well, almost as bad as it gets. We still haven't checked out the second part of the one-two punch. (Be forewarned, at this point my analysis gets a little speculative.) As a reminder:
(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.
I know that by now you really don't want to see me do this. I'm sorry. But let's go through the paragraph. Remember, this is disjunctive. There was an "or" at the end of subparagraph (i). Either of these gets you in.
"Before, on, or after the date" is one way of saying "ever." This is retroactive and extends unto eternity.
"Anyone who has been determined to be an unlawful enemy combatant by a [CSRT]."
Wait a second. That doesn't make sense if this is disjunctive. The CSRT would necessarily be making the decision based on the criteria in subparagraph (i), right? So what's the point of saying that "whoever the CSRT says is an enemy combatant is an enemy combatant"?
Here's my unpleasant interpretation:
What they're actually saying here is that the determination of the CSRT itself is itself proof of the determination. In other words, barring some egregious and acknowledged error, this is a measure stripping some or all of the power to review the CSRT determinations from the military tribunals. So maybe it doesn't matter if citizens can't be put on trial through military tribunals. Maybe there's no point in a trial.
But here's the cherry on top of the dog vomit sundae: if the President or Secretary of Defense wants to make up something different from the CSRTs, either is authorized to do so under this paragraph, so long as it is a "another competent tribunal." (And who decides if they're "competent"? They do, of course. The jurisdiction of the courts has been stripped.) And there is nothing that says that those new tribunals also have to follow these rules that apply to CSRTs. That means that all of these nice laws, all of these protections, mean nothing. That's the final horror: this is all for show. Congress said right in this paragraph that the President can, by executive order, set up "another competent tribunal" to determine whether people are unlawful enemy combatants -- and if that tribunal determines that they are, then they are, and everyone has to respect that, and they don't get access to the normal court system. That's why the paragraph saying that only aliens go through military commission trials may mean nothing. Having set up this non-judicial judicial system by statute, the President can now set up an even more non-judicial judicial system by fiat.
How can we properly thank Congress for this law? We have truly entered the Star Chamber.
But hope for sanity remains. Some critics will respond to all of the above by citing section 950g of the Military Commissions Act, which brings the process back into the court system by providing for appeal of a given ruling to the D.C. Court of Appeals. (This is not the same thing as "habeas corpus.")
Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court
`(a) Exclusive Appellate Jurisdiction- (1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.
`(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.
`(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
`(B) 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.
`(b) Standard for Review- In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.
`(c) Scope of Review- The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of--
`(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and
`(2) to the extent applicable, the Constitution and the laws of the United States.
`(d) Supreme Court- The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.
I've boldfaced paragraph (c), because that's what really matters. Paragraph (c)(2) does allow for Constitutional constraints to be imposed -- but if this law is held to be constitutional, then we can expect the D.C. Circuit and Supreme Court to be highly deferential, rather than picking and choosing whether one or another applicable of the law goes too far. So the real issue is (c)(1) -- "did the tribunal follow its own rules?" And the tribunal probably will. Why not? Its rules are draconian. Remember, one rule is that whoever the CSRT or other competent tribunal established by the President or SecDef says is an unlawful enemy combatant is one. Don't expect to see much if anything overturned at this level. In my opinion, this section is a fig leaf.
So: U.S. citizens may now actually be liable to being charged as unlawful enemy combatants for knowingly giving "material support" to U.S. "co-belligerants" -- charges of which that can be trumped up, of course -- and they would have no recourse other than appealing to the executive branch itself for exculpation. Please understand the full horror of this. This is a separate, parallel, and impregnable judicial system that is being set up -- of, by, and for not the people, but the President. You, someday, may be part of it. You may never be able to get yourself out of it, unless we change this law.
Congress, listen to us. We implore you: restore our Constitution.
A personal aside: my great thanks to Jay and to all authors in this series. I hope that we can boil this collective effort down into some work that can help move public opinion -- and can help move Congress to do its job and protect our system of government.