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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.


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.

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