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MCA, redux

While I'm still fuming mad about the recent passage of the Military Commissions Act of 2006, I am starting to get even fuming madder about the incorrect allegations, misrepresentations, and in some cases outright lies being spread about this law. When even a law professor at Yale blows right past the fact that the MCA applies only to people who are not citizens of the United States, I get pissed.

So, in the interest of Doing My Part, I give you A Layman's Guide to Dealing With the Military Commissions Act of 2006, linked and under the cut. It's a flowchart detailing who the MCA applies to and what you can do if you find yourself charged under it. Note that I am absolutely not a lawyer -- not even a law student -- and this is merely a layman's reading. If you find yourself charged with terrorist activities or conspiracy to commit same, for God's sake, get a competent attorney.

But, with that said, please feel free to spread this image around; it's free under Creative Commons Attribution-Noncommercial-ShareAlike.

EDIT: I've seen a lot of arguments claiming that U.S. citizens can be tried under the MCA, and some people have taken me to task for supposedly neglecting this. They cite the first definition given in Sec. 948a:
(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) 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.
and point out that "person" can apply to anyone, including citizens.

However, that's a definitions section. "Alien" is defined two bullet-points down:
(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.
And, finally, Sec. 948c, "Persons subject to military commissions" consists wholly of the following statement:
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
So, no. Maybe you can be declared an unlawful enemy combatant, but as long as you're a U.S. citizen, you can't be declared an alien unlawful enemy combatant, and the MCA does not apply to you.

FWIW, the Cato Institute agrees with me.


( 12 comments — Leave a comment )
Oct. 3rd, 2006 07:36 pm (UTC)
My questions are:
How do we know if this is being aplied properly?

Are the tribunal records regarding a person's status part of the public record and open to review?

The first check point is 'Are you presently a citizen' or is it 'ever was a citizen'?
Oct. 3rd, 2006 07:50 pm (UTC)
These are all important questions. Thanks for asking them!

Section 949o requires that records be kept verbatim. They may have a classified portion, and if there is one, the accused must be provided with a summary of the classified contents; the defense counsel is granted access to the full record whether the counsel has a security clearance or not.

Sec. 948e requires that these records be filed annually with the House and Senate Armed Service Committees. I don't know whether that makes them part of the public record or not, and I don't see anything else on recordkeeping requirements.

The MCA applies to people who are presently not U.S. citizens; I expect that means "at the time charges are brought against them", but you'd have to ask a lawyer for a definitive answer. So I phrased the checkpoint as "Are you a U.S. citizen?" to reflect the language of the bill. I believe that if you were a U.S. citizen, lost your citizenship, and were then charged, the MCA would apply, but you might be able to fight it anyway.

As far as how we know whether it's being applied properly ... that's a hard one. I will be entirely unsurprised if it is being applied improperly, and I fully expect that part of that improper application will be keeping the accused, and the public, in the dark about what's actually going on.

This is why I urge everyone to learn as much as they can about what's happening in the world, and to demand answers and accountability from our government. I wish I could say something more encouraging than that, but I'm not going to knowingly lie to you, either.
Oct. 3rd, 2006 10:14 pm (UTC)
As US permanent resident (avec green card), am I potentially fucked by this?
Oct. 4th, 2006 11:07 am (UTC)
I had a feeling it mostly applied to unlawfull enemy combatants who arent US citizens. But of course most people just want to bitch and not learn the facts.
Oct. 4th, 2006 12:09 pm (UTC)
Of course this is all under the supposition that the administration "plays by the rules" Rules that I hear on places such as NPR with experts in the field of law say that the wording of the language in question is deliberately fuzzy.
(Deleted comment)
Oct. 19th, 2006 07:58 am (UTC)
to say it is not malign fuzziness is to not understand how government works. Fuzziness is often delibarate adn maligned to hide true meaning, not necessarily from the people but from those voting on it. A majority of people in the Senate and the House didnt even read the PATRIOT Act, how many do you think actually read this one, other than those that wrote it?
Oct. 5th, 2006 02:11 pm (UTC)
Is your thomas.loc.gov link right? The bill everyone's up in arms about is HR 6166; yours seems to link to a Senate bill from January.
Oct. 5th, 2006 03:15 pm (UTC)
Check out the GovTrack link which describes the process in a little more details. HR 6166 and S3930 were virtually identical bills, which both passed their respective chambers.

Anyway, on September 29th the House voted to accept the Senate's version, and that same day it was sent on to the President. Meanwhile, the House version's last action was to be voted on in the House; it will never be sent to the Senate now.

(Note that the little ENR next to one of the versions in the THOMAS link is parenthetically expanded to "as enrolled"...)
Oct. 5th, 2006 03:51 pm (UTC)
d'oh! Man, I can't keep track of that "how a bill becomes a law" nonsense to save my life.

Good post - and flowchart.
Oct. 19th, 2006 08:00 am (UTC)
in your EDIT you give SEC. 948a and then repute it with definiteions, however nowhere in Sec. 948a does the word "ALIEN" appear. Your counter-argument does not apply to the section given...?
Oct. 21st, 2006 07:29 pm (UTC)
Seems like it's a lose-lose for everyone.
Even the Cato Institute article indicates that a U.S. citizen can be detained through this ridiculous, embarrassing-yet-frightening Act. Perhaps more frightening is the collective yawn coming from U.S. citizens. This is as bad as the idea of detaining (and not trying) Japanese Americans during World War II.
Jan. 27th, 2007 11:38 pm (UTC)
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( 12 comments — Leave a comment )

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