Is the Military Commissions Act Wise?

I have a simple two-step theory to explain the drafting of the Military Commission Act of 2006. First, think of every vital and constitutional protection traditionally afforded individuals subject to incarceration. Second, deny those safeguards to any persons who are defined, or branded, as unlawful enemy combatants. And presto, stylized and overbroad claims of national security place millions of people living in this country in constitutional limbo.

Just focus on this key provision of the MCA: "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." That provision is exquisitely drafted for the MCA's perverse purpose. The Act's overarching goal is to deny federal and state courts, and the judges and justices who serve on them, the ability to question or review the detention of any alien. This provision draws no distinction among aliens. Lawful aliens are treated no better than unlawful ones. People found within the United States receive no greater protection than people found outside the country. The law is deliberately faceless. No one must answer by name: the MCA does not require the President or any particular official, high or low, to make, ratify, or defend a decision of "the United States." Nor does the MCA state whether a mere anonymous say-so counts as a determination of combatant status, or whether someone, let alone who, has to review the evidence before the writ of habeas corpus is lost. Nor need the government run the charade at all: it can make sure that some detainees "await" a determination, say, forever.

This high-handed removal of the writ is an affront to the rudimentary principles of fair play found in every court that does not model itself on the old English Star Chamber. But our reckless President and feckless Congress say not to worry, because the MCA offers a modern substitute of equal worth for an ancient writ: a hearing, maybe, before the newly refurbished Combat Status Review Tribunals. The government is surely right in insisting that there's no magic in the Latin words habeas corpus. But if its name does not matter, its protections do: do people held against their will have a chance to challenge their confinement in a regular proceeding before a neutral official? Technical lawyers would put it like this: are detainees given due process before they lose their freedom?

The MCA flunks that test stone cold. Justice delayed is justice denied, perhaps forever. But even if the MCA required the United States to convene a CSRT the day confinement began, its procedure would still be worthless. A decent hearing requires that detainees have the right to the assistance of counsel, not some untrained "representative" who is not covered by the attorney-client privilege. Payment is neither here nor there: the organized bar and its allied groups could send trainloads of lawyers to take these cases gratis. But under current CSRT procedures, their dedication would hardly matter. The lawyers could not examine the evidence presented against their clients before the CSRT, and the truncated judicial review that follows only asks whether a CSRT has followed its own rules, which preclude any person inside the military from making a full evaluation of the record But no court may examine the sufficiency of the evidence that supports any determination of enemy combatant status; nor may the detainee supplement the record with independent evidence of his own. In the end, the rules are rigged so that the administrative determination is conclusive against all subsequent actors.

The mere recitation of how the MCA operates should condemn it to constitutional oblivion. The only defense that could be offered on its behalf is that courts have no business in deciding questions of guilt or innocence on matters of national security. Amazingly enough, that is what many in Congress think is the case. But why? National security supplies no magic bullet, for this large claim need not square with the grubby particulars of individual cases. Right now some detainees were not found on or near any battlefield. Right now some detainees are citizens of friendly nations who are lawfully in the United States. Right now some detainees claim that their sole crime was to have been captured out of uniform when fingered by personal enemies bent on revenge. Right now some detainees claim that other persons have been tortured into naming them as unlawful enemy combatants.

I have no idea whether these persistent charges are true or false. But I do know that many people not in uniform were not combatants either, and that an enormous gulf separates the tales of these detainees from the government's alternative narrative. So how does any decent society deal with these enormous discrepancies? By investing substantial resources to determine guilt or innocence when demands for individual liberty are pitted against national security. It's not by taking the government's assertion at face value. It is by gathering and weighing evidence. During that process, the government may well have sensitive evidence that should be kept under wraps. But that objection works at the retail level, where independent judges can develop sensible responses--in camera hearings, redacted transcripts--in individual cases. Without doubt some errors will occur, as they always do. But consider the grim alternative, which lets the government conceal its own wrongs by preventing any detainee who has been railroaded or abused from presenting his case before a neutral tribunal.

The constitutional analysis is open and shut. First habeas corpus can be suspended only in cases of rebellion or invasion when the public safety requires it. Thankfully, those conditions are absent. The total denial of habeas corpus counts as the suspension par excellence, by keeping detainees perpetually shielded from any oversight by a federal judge. To be sure, these detainees receive an Executive branch (i.e. military) hearing. But the question of habeas is part of a larger tapestry which includes the protection that the Fifth Amendment provides all persons against a deprivation of liberty without due process. So understood, it s fair to ask whether the MCA procedures meet the minimum standards of due process? Not on your life. The challenge that the MCA puts before the Courts is not one of legal analysis, but of moral courage. Will judges distrust the President and Congress who seek their trust? Will they stand up to their combined power of both political branches when they have jointly betrayed the nation? Cross your fingers.