Countdown to the striking down of the Military Commissions Act, volume 1

Jack Balkin has now posted a great, vitally needed second look at the "Military Commissions Act".

Without going into his comments specifically, the thing that stuck out to me as soon as I first skimmed the Act is that it suspends habeas corpus as a matter of course. Its language therefore creates a suspension of habeas that is far broader and more permissive than the specific provision in the Constitution for habeas to be suspended in a rebellion or invasion that creates an emergency situation in which public safety requires the suspension. In a nutshell, then, this Act is therefore per se unconstitutional, and destined to get struck down.

The scary, anti-American and antidemocratic nature of this Act was driven home to me when, just a couple days after it was passed, I read a news article about the FBI investigating potential links between terrorists and traditional organized crime. Despite the first impression the article gave, it indicated there is no evidence for such a scenario any more substantial than an episode of the Sopranos, and the vigorous speculations of the FBI that seem to be encouraged from the highest levels. And thus we see, already, the effort underway to drive the machinery of the Military Commissions Act toward application to ordinary domestic crime, and to blur any distinctions between suspected terrorists and suspected criminals, or between the dictatorial powers of the Military Commissions Act and the Constitutional criminal procedure that has been a hallmark of America since its founding.

Thankfully, the tireless Center for Constitutional Rights is already filing habeas petitions on behalf of 25 Bagram Air Base detainees that were crafted specifically as a vehicle to challenge the Military Commissions Act, before the President has even had a chance to sign it into law.

The sad thing is not only that the media have given precious little attention to the Military Commissions Act, but that even when they cover it they betray an insufficient understanding of how extreme it is. While they have described the Act as defining anyone who materially supports hostilities against the United States as an unlawful enemy combatant who therefore qualifies to have his Constitutional rights stripped away, they have failed to report that the Act gives equal potential for someone to be defined as an unlawful enemy combatant purely by being labeled as such by a status review tribunal constituted under the authority of the President or the Secretary of Defense, with no objective standards or stated procedure, and with this determination being dispositive. This appears literally to purport that a tribunal set up by the President or Secretary of Defense, under absolutely whatever procedures they feel like following, composed of whomever or however many people they feel like appointing - even just their own selves, would have the statutory authority to strip anyone else of their normal constitutional rights and instead label them as an enemy combatant, who may then be statutorily imprisoned for any length of time with no charges and no trial - and with no possibility of judicial review of the determination by the tribunal.

It sounds too extreme to be true of any government this side of Burma or Sudan. But go read the Act our Congress just passed, and see for yourself.