The Rights Of Terrorists

A tip of the hat to my friend Wayne who sent me the link to More Liberty and this post on the Military Commissions Act currently being considered in the House of Representatives. Wayne and I share some Libertarian thinking. Some we don't. I think we are going to disagree on this article.

The U.S. House will vote today on H.R. 6166, the Military Commissions Act. If H.R. 6166 passes, America will be fundamentally changed. And the terrorists will have, once again, won. Therefore, we urge a "no" vote.

I haven't heard "the terrorists will have already won" since months after 9/11. I can't say it's a bromide that I have missed. In fact I was sort of relieved when that particular bit of foolishness seemed to stop. Or maybe I had just managed to tune it out.

H.R. 6166 would establish a completely new court system, known as military commissions, with new procedures. These new commissions are being created to prosecute "unlawful enemy combatants." This all sounds fine and dandy. But who is an unlawful enemy combatant?

This is patently false. Military commissions are nothing new. They have been around for about as long as we have had a military. But that incorrect fact is not really the problem Kent Snyder of More Liberty has with the bill.

According to Brett Murphy of the University of Pittsburgh School of Law's Jurist publication, "White House and Republican congressional negotiators decided over the weekend to move forward with a definitional change in proposed legislation on military commissions that would broaden the meaning of 'unlawful enemy combatant' and allow the detention and trial by commission of a larger spectrum of suspects, the Washington Post reported Tuesday. While the language of the previous version agreed to by GOP leaders last Thursday defined 'unlawful enemy combatant' as 'an individual engaged in hostilities against the United States,' the new definition also includes those 'who [have] purposefully and materially supported hostilities against the United States.' It is unclear whether the new definition will apply to US citizens, but there is no express prohibition against such designation."

So, one person, the president of the United States, whoever he or she might be, will have the power to designate an American citizen an "enemy combatant"; an enemy of the State. That person will then be tried not by the proper constitutionally created separate branch of government the Founders gave us, the judicial branch, but by the president's own military tribunal...with no congressional oversight, no right of appeal, no constitutional rights whatsoever for the accused. (emphasis mine)

I don't know who Brett Murphy is but I think his job at the University of Pittsburgh School of Law's Jurist publication might be Head Janitor. He certainly doesn't seem to know how to read a House bill.

From the Library of Congress. Enter HR 6166 in the search (a direct link doesn't work.)

Section 948a of HR6166: 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. (emphasis added)

`(B) CO-BELLIGERENT- In this paragraph, 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.

`(2) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means a person who is--

`(A) a member of the regular forces of a State party engaged in hostilities against the United States;

`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

`(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

Neither Bret nor Kent seem to have read very far down in the definitions. Or they just decided to ignore that part in paragraph two about the tribunals. Ignoring that would certainly make it easier to pretend that the bill gives the President too much power.

They also didn't read or ignored the rest of HR 6166 (all emphasis added)

`Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

I guess that puts an end to the Imperial President using tribunals on citizens fantasy. If that isn't enough this should probably cover it.

`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.

Kent Snyder is either ignorant of or chose to ignore the long history of military commissions, and both he and his primary source Brent Murphy are either ignorant of or chose to ignore the content of the legislation they are urging be defeated. Wayne often sends me interesting and thought provoking links. This isn't one of them.

Posted by: Stephen Macklin at 02:36 PM | Comments (3) | Add Comment