Thursday, October 05, 2006

Terrorists' "Rights" and the Military Commissions Act of 2006

Cato's Mark Moller finds that the Military Commissions Act of 2006 "is not patently unconstitutional—but it is hardly on uncontrovertible constitutional footing, either." That is not a surprising conclusion, coming as it does from a member of the "libertarian" camp that cannot seem to focus on a key purpose of the Constitution: the protection of the liberties of American citizens.

Andrew McCarthy, writing at National Review Online, is well focused -- as usual. As McCarthy points out,

Congress has already given al Qaeda detainees the very rights the critics claim have been denied [by the Military Commissions Act of 2006].

Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

McCarthy explains that, under the Constitution, terrorists have no habeas corpus rights or treaty rights:

Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution. . . .

Isn’t habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva’s Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

If the Supreme Court were to decide that the Military Commissions Act of 2006 is unconstitutional, it would be high time for President Bush to take a Jacksonian stance: "The Supreme Court has made its decision, now let them enforce it." I would base that stance on an earlier holding by the Court:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

-- Justice Felix Frankfurter, concurring in Korematsu v. United States (1944)