MCA and Hamdi v. Rumsfeld; no trial necessary to detain

[teryang]

This is one of the principles underlying the Hamdi v. Rumsfeld decision by the Supreme Court:

"There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37—38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30—31. See also Lieber Code, ¶153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict."

This is further complicated by the fact that Military Commision Act says those who purposely and materially support hostilities against the US or its co-belligerents, are "unlawful enemy combatants." The Patriot Act defines "domestic terrorism." Therefore, the limited facts considered under Hamdi, whereby he was alleged to have taken up arms against US allies in a combat zone, could be extended to encompass aid and material support domestically or domestic terrorism as within the zone of combat. (There is no front to combat zone in the war on terror.} Aid and material support and domestic terrorism are defined both broadly. Therefore, the law could be applied to virtually anyone, a critic of the war, an anti-war protestor, someone thought to fit a profile at an airport. Any of these persons could be charged with "conspiracy" which the Hamdan court noted is not the type of crime that has ever been charged under the law of war, but which is now included under the MCA. This would make such person an "unlawful enemy combatant." In any case, the detention of an enemy combatant is ostensibly not punishment nor criminal in nature, therefore, one can be held indefinitely without a hearing or trial as long as the hostilities (the war on terror) persist.

The limits are only those set by the imagination of unchecked power.

No trial necessary folks! No speedy trial. No jury trial. No counsel. The only procedure mandated is Habeus for citizens. The other would be the tribunal to determine detainee status. If such had been accomplished and met Hamdi requirements, the Habeus petition would probably be ineffectual.

Here's the key provision of the MCA on this point:

‘‘In this chapter:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful

enemy combatant’ means—

‘‘(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...

Notice that it doesn't say alien or person subject to this chapter as the procedural provisions for the Commission's jurisdiction do.

[aquart]

1. So Rumsfeld can just disappear?

One cold day in January?