Lots of email overnight. Here’s one which makes the contrary case. Seems fairly persuasive:
I don’t know who sent you email saying that: “the proposal which passed the House H.R. 6054 categorically has nothing to do with Americans.” But that email is wrong. I am a teaching fellow at Stanford Law School, and I know what I’m talking about.
HR 6054 is not even the bill that passed the house. HR 6166 is. If you want to check you can look at this link from THOMAS, the Federal Government’s website for keeping track of this stuff: ( http://thomas.loc.gov/cgi-bin/query/D?r109:7:./temp/~r109IvJEYd). At the bottom it states that HR 6166 is the bill passed in the house.
Look, I know that this stuff is hard to keep track of, and that you will be inclined to blow off my email. Please don’t. This stuff matters. If nothing else, this debate should prove the absolute insanity of passing a bill that fundamentally alters essential and American rights when the public, and even highly educated people such as yourself, can’t even figure out what’s in it. All in order to provide “clarity”! The current status of the bill allows military tribunals to declare citizens and resident aliens to be “unlawful enemy combatants.” Under the language of the bill, there is no test whatsoever for whether a citizen or noncitizen is an “unlawful enemy combatant.” Under the law, someone is an UEC if a military tribunal says so. That is to say, the tribunals have power that is not at all subject to contstraint or law–or even defined by law–but that extends to U.S. citizens. Read the bill if you don’t believe me. I have posted the relevant provisions below. Now, it is true that the bill does not authorize military trials of citizen UECs, although it does authorize military trials of legal resident alien UECs. I don’t know what would happen to citizen UECs under this bill. But you can be damned sure the Bush administration wouldn’t want the power to deem citizens to be UECs without any review or even guidance of law if it didn’t have some reason to do so. I am asking you to try and stop this, even though I know it is too late. I have excerpted the relevant portions below.
The relevant provisions in HR 6166 are: Sec. 948a. Definitions
`(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
`(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.
Sec. 948d. Jurisdiction of military commissions
`(a) Jurisdiction- A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
`(b) Lawful Enemy Combatants- Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
`(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
`(d) Punishments- A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war.