we could all be enemy combatants

Last night I posted something about the Military Commissions Act of 2006, which generated a great deal of discussion — most of which seemed to revolve around whether or not “we,” as American citizens, could be designated “enemy combatants,” and thus subjected to torture and various other indignities without judicial recourse. The debate is still taking place in the comments section, but I thought that it was worthwhile to pass along this link from Oliva which will take you to the transcript of a conversation between MSNBC commentator Keith Olbermann and Jonathan Turley, a constitutional law professor at George Washington University. It seems clear to me, at least from Turley’s interpretation, that, yes, a U.S. citizen could be designated an enemy combatant. Here’s a clip:

KEITH OLBERMANN: I want to start by asking you about a specific part of this act that lists one of the definitions of an unlawful enemy combatant as, quote, “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.”

Does that not basically mean that if Mr. Bush or Mr. Rumsfeld say so, anybody in this country, citizen or not, innocent or not, can end up being an unlawful enemy combatant?

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: It certainly does. In fact, later on, it says that if you even give material support to an organization that the president deems connected to one of these groups, you too can be an enemy combatant.

And the fact that he appoints this tribunal is meaningless. You know, standing behind him at the signing ceremony was his attorney general, who signed a memo that said that you could torture people, that you could do harm to them to the point of organ failure or death.

So if he appoints someone like that to be attorney general, you can imagine who he’s going be putting on this board.

OLBERMANN: Does this mean that under this law, ultimately the only thing keeping you, I, or the viewer out of Gitmo is the sanity and honesty of the president of the United States?

TURLEY: It does. And it’s a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison said that he created a system essentially to be run by devils, where they could not do harm, because we didn’t rely on their good motivations.

Now we must. And people have no idea how significant this is. What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values.

It couldn’t be more significant. And the strange thing is, we’ve become sort of constitutional couch potatoes. I mean, the Congress just gave the president despotic powers, and you could hear the yawn across the country as people turned to, you know, “Dancing with the Stars.” I mean, it’s otherworldly…

And, for the record, I was not watching “Dancing with the Stars.” I was online watching a very cool Kelly Clarkson rocking out with the mock metal band Metal Skool. (The memory of it will comfort me as I waste away in solitary confinement.)

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  1. egpenet
    Posted October 18, 2006 at 11:35 pm | Permalink

    Every family should have an emergency plan … fire, storms, early school releases, etc. … so the family can react without panic.

    Every family should have proper wills, estate plans, a file with all the account numbers, important computer passwords, etc.

    Every family should have medical power of attorney forms completed and/or medical directive forms IN QUANTITY for handouts to first responders, emergency room personnel, doctors, etc.

    Thanks to Debbie Stabenow and friends, we need to call or attorneys now and have a letter to our attorney and families directing them to contact FBI, CIA, DOD and NSA if we don’t show up for Sunday dinner.

    Where’s that freakin’ pumpkin?

  2. Dr Cherry
    Posted October 18, 2006 at 11:50 pm | Permalink

    I’ve been playing ever NES game ever made right on this web page


  3. ol' e cross
    Posted October 19, 2006 at 8:09 am | Permalink

    I still haven

  4. ol' e cross
    Posted October 19, 2006 at 8:09 am | Permalink

    I still haven

  5. Dr Cherry
    Posted October 19, 2006 at 9:18 am | Permalink

    The Act doesn’t specifically give the president power over citizens. Instead it creates a legal gray area around citizens who’ve been labelled enemy combatants.

    I wish our legal system was as altruistic as your reading of the Act OEC, but in practice it plays like a slow-motion dance that can last for years while (sometimes) innocent people rot in secret prisons.

    You’re sort of implying that this administration didn’t wan to treat Padilla the way they did, they just hadn’t passed this act yet. The ends don’t meet.

    A classic tactic of propagand to accuse the opposition of doing exactly what they’re doing.

    The Bush administration uses fear-mongering to ram through some un-american legislation granting the executive branch far-reaching powers and the apologists accuse the opposition of what? Fear-mongering.

    Amnesty Internation and the Americn Red Cross are fear-mongering too.

    “This country has been having a nationwide nervous breakdown since 9/11. A nation of people suddenly broke, the market economy goes to shit, and they’re threatened on every side by an unknown, sinister enemy. But I don’t think fear is a very effective way of dealing with things — of responding to reality. Fear is just another word for ignorance.”

    –Hunter S. Thompson, Salon.com interview, February 2003

  6. ol' e cross
    Posted October 19, 2006 at 9:35 am | Permalink

    I’m not sure how I’m implying the adminstration didn’t intend to mistreat Padilla. I don

  7. ol' e cross
    Posted October 19, 2006 at 9:35 am | Permalink

    I’m not sure how I’m implying the adminstration didn’t intend to mistreat Padilla. I don

  8. Dr Cherry
    Posted October 19, 2006 at 9:35 am | Permalink

    You know I’m reading into this further many legal writers break it down like this:

    Alien Enemy Combatant: Possibility of indefinite detention, Military Tribunal, denial of habeas corpus.

    Citizen Enemy Combatant: possiblity of indefinite detention, rights of habeas corpus.


    The Act is tricky because it doesn’t define an Enemy Combatant as “alien” necessarily but inserts the word “alien” in many of it’s provisions. This is how the gray area around Citizen Enemy Combatants is created.

    It also widens the definition of Enemy Combatants to include anyone providing “material support” to the “enemy”.

  9. Dr Cherry
    Posted October 19, 2006 at 9:42 am | Permalink

    I guess what I’m trying to say is that I think the bill allows for the indefinite detention of any Enemy Combatant, citizen or alien.

    I hope I’m wrong but I’m still looking for clarification.

  10. Dr Cherry
    Posted October 19, 2006 at 9:59 am | Permalink

    These are quotes from a highly-technical article I found at the CATO Institute. I hope everyone will try to read through it because I think it’s the best explaination of how this Act dovetails with existing legal precident.

    2. Due Process. Another argument against the MCA is that it violates due process by denying persons an independent pre-trial judicial hearing determining whether they are a citizen or an alien.

    CATO Institute: Is the Military Commission Act Constitutional?

    It might be argued that while the Suspension Clause authorizes Congress to suspend challenges by citizens or aliens to detention (the issue in Hamdi), a remedy must remain available to challenge the threshold factual determinations of who may be subject to military trial. The theory is that the Suspension Clause allows the executive to preventatively detain people without judicial process

  11. Ted Glass
    Posted October 19, 2006 at 11:24 am | Permalink

    I suspect we’ll just have to wait and see how it plays out over time. My guess, however, is that this law will not make any of us, regardless of where we were born, less likely to be abducted, held without recourse and tortured. Arguing as to whether we’re at the top of a slippery slope or at the bottom seems to miss the point.

  12. Tony Buttons Esq.
    Posted October 19, 2006 at 1:37 pm | Permalink

    I just got this note from Senator Patrick Leahy:

    On Tuesday, in a carefully choreographed photo op staged three weeks before Election Day, the President signed the Military Commissions Act, a severely flawed bill that will undercut our freedoms, assault our Constitution, and let the terrorists achieve something they could never win on the battlefield: the winnowing away of rights and freedoms that have defined America for hundreds of years.

  13. oliva
    Posted October 19, 2006 at 1:53 pm | Permalink

    Thank you, Senator Leahy–and TB, Esq., for posting his statement.

    What to do about Stabenow now (or, I should say, on Election Day)?!

    And thank you very much, Mark, for taking the care to point out that “citizen or not” is not really the issue.

    Olbermann’s taken to making long impassioned statements, and I’ve tuned in now for two of them–quite moving to see and hear. Last night he ended with this, directed to Bush:

    did it even occur to you once, sir

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