President Given Undue Power to Silence Critics

Synopsis Center for Constitutional Rights 9/27/06

On September 26, 2006, attorneys for the Center for Constitutional Rights (CCR) determined that what appears to be the final version of the Military Commissions Act of 2006 could allow the government to detain the attorneys themselves as ‘enemy combatants.’ CCR Legal Director Bill Goodman said: “This ominously broad definition of enemy combatants would mean that almost anyone who actively opposes the President or the government could be locked up indefinitely. This bill makes a mockery of the rule of law.”

The current version of the Military Commissions redefines an “unlawful enemy combatant” (UEC) so broadly that it could include anyone who organizes a march against the war in Iraq. The bill defines a UEC as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States” or 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 of the United States.” The definition makes no reference to citizenship and therefore could be read to include any number of individuals, including:

*CCR attorneys and other habeas counsel, Federal Public Defenders and military defense counsel for detainees at Guantánamo Bay
*Any person who has given $5 to a charity working with orphans in Afghanistan that turns out to be associated in some fashion with someone who may be a member of the Taliban

The bill also currently includes provisions so sweeping that they strip U.S. courts of jurisdiction over habeas petitions by any non-citizen detained by the government anywhere. Because there is no geographic limitation in the bill’s language, it would allow the President to detain any non-citizen without their ever having the chance to challenge their detention in court: “No court… 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.” Examples of people who could be detained indefinitely with no access to a court include:

*A foreign tourist wearing an anti-Bush t-shirt at the Statue of Liberty
*A protester at an immigration rally who has lived in the U.S. since she was six months old and is a lawful, permanent resident

CCR Executive Director Vincent Warren said: “This new version of the legislation grants the President frightening power to silence his critics. Habeas corpus is, like voting, one of the fundamental rights of democracy. The President’s efforts to exercise the privilege of kings must be turned back, before the so-called ‘war on terror’ turns on our own citizens.”