Say Anything’s Rob Port—whom I was beginning to think might be a long-lost twin brother— takes issue with the previous post, “What Is Conservatism?” He writes:
While it is undoubtedly true that a guarantee of habeas corpus has been a founding principle of both this country’s laws and the English common law the framework of our legal system is based on, what is not true are these things:
(1) That the Military Commissions Act “weakens” the constitutional guarantee of of habeas corpus. I’d point out that the MCA, in section 7, states the following: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Clearly this does not do anything weaken the constitutional guarantee of habeas corpus for U.S. citizens, who are the only people afforded the protections of the constitution.
(2) There is absolutely no tradition of extending constitutional protections, specifically habeas corpus relief, to war detainees. America has never, ever done that in any of the wars or conflicts we’ve fought in the past.
To put it bluntly, all supporters of the Military Commissions Act want is for the detainees in the war on terror to be treated as though they were detainees of any other war we’ve ever thought.
At the risk of diving into one of those endless discussions that go on so long the original point gets lost, I’d make the following assertions.
(1) Conservatives should be leery of any expansion of government power. To that end, they should ask themselves not what a law is intended to do, but what power it actually grants. More about that in a sec.
(2) In fact, it is true that the Military Commissions Act (MCA) weakens habeas rights. Otherwise, there would be no need for the language brother Port cites denying courts jurisdiction to hear habeas appeals. Before the MCA, courts could hear habeas claims from resident aliens detained as unlawful enemy combatants. Now the courts can’t. Even if one says this is the proper course of action, it still constitutes a weakening of habeas rights. (So why not just say, “MCA weakens habeas rights for noncitizens, as it should”?)
(3) Mr. Port then writes: “U.S. citizens . . . are the only people afforded the protections of the Constitution.” That this is not so is plainly evident from the Fourteenth Amendment, which distinguishes betweeen citizens and persons ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"). The government cannot seize the property of a resident alien on a whim, merely because he is not a citizen. It must follow due process. Likewise, the guarantees of the Bill of Rights are properly considered restraints on federal power—not privileges extended to certain classes of residents.
(4) The MCA permits the indefinite detention of individuals found to be unlawful enemy combatants. It defines as unlawful enemy combatants not just those who have taken up arms, but also those who have “materially supported” hostilities against the U.S. What constitutes material support is a matter of some dispute. Should conservatives simply trust the federal government to interpret the phrase narrowly?
(5) The MCA also defines as an unlawful enemy combatant anyone “who 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.” In other words, if a military tribunal decides you’re an enemy combatant, that’s it. You are one. Should conservatives trust government to wield such arbitrary power wisely?
(6) Brother Port is certainly right that American citizens presumably can challenge their detention in civilian court. How, precisely, that would work is an interesting question. Suppose you tell your guard, “Hey, Im an American citizen, I deserve my day in court,” and he says, “Oh, yeah? Prove it.” The Act seems to create a catch-22: In order to challenge your detention by a military tribunal in a civilian court, you first must convince a military tribunal you deserve access to a civilian court. And military tribunals need not abide by all the legal niceties extended to defendants in civilian courts.
(7) Rob concludes by saying, “all supporters of the Military Commissions Act want is for the detainees in the war on terror to be treated as though they were detainees of any other war” [emphasis added]. Quite reasonable. But—going back to point (1) above—that is not all that the law permits. In previous wars, an individual was detained if he was captured on the battlefield. Now he can be detained if, for instance, he gives money to a suspect charity, or—as in one case cited by Georgetown law professor David Cole—he was a college student whose website linked “to other websites which in turn featured speeches by Muslim sheikhs advocating violent jihad. The prosecution’s theory was that the student was providing ‘material support’ in the form of expert advice or assistance by running the website and linking it to such statements. On that understanding of the law, The New York Times could be prosecuted for featuring a link to Osama bin Laden’s latest taped statement.”
Would that ever happen? Perhaps not. But a good conservative shouldn’t just take Washington’s word for it.
(Okay, Rob—your turn!)
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