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I can't believe I didn't know this. It appears the question of whether an American citizen can be treated as an "illegal enemy combatant" under the Military Commissions Act of 2006 was answered three years before the MCA was even passed. From an article describing the case of Ali Saleh Kahlah al-Marri:
"Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely. . . .
"A computer specialist, al-Marri was ordered to wreak havoc on the U.S. banking system and serve as a liaison for other al-Qaida operatives entering this country, according to a court document filed by Jeffrey Rapp, a senior member of the Defense Intelligence Agency.
"When investigators looked through [al-Marri's] computer files, they found information on industrial chemical suppliers, sermons by bin Laden, how-to guides for making hydrogen cyanide and information about chemicals labeled 'immediately dangerous to life or health,' according to Rapp's court filing. Phone calls and e-mails linked al-Marri to senior al-Qaida leaders.*
"In early 2003, he was indicted on charges of credit card fraud and lying to the FBI. Like anyone else in the country, he had constitutional rights. He could question government witnesses, refuse to testify and retain a lawyer.
"On June 23, 2003, Bush declared al-Marri an enemy combatant, which stripped him of those rights. . . .
"A military brig allowed more options. Free from the constraints of civilian law, the military could interrogate al-Marri without a lawyer, detain him without charge and hold him indefinitely. . . .
"'The president is not a king and cannot lock people up forever in the United States based on his say-so,' said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. 'Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back.' . . .
"Glenn Sulmasy, a national security fellow at Harvard, said . . . [t]hat's how Congress wrote the bill** and 'if they feel concerned about civil liberties, they can tighten up the language,' he said.
"That would require the politically risky move of pushing legislation to make it harder for the president to detain suspected terrorists inside the U.S. . . .
"The last decision, a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel, found that the president had crossed the line and al-Marri must be returned to the civilian court system. Anything else would 'alter the constitutional foundations of our Republic,' the judges said.
"The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.
"'What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?' Judge William B. Traxler asked.
"'Yes, your honor,' Justice Department lawyer Gregory Garre replied.
"The court seemed torn.
"One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.***
"Another judge said the question is not whether the president was generous in his use of power; it is whether the power is constitutional.
"Whatever the decision, the case seems destined for the Supreme Court. In the meantime, the first military trials are set to begin soon against detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put back into the civilian court system. For now, he waits."
* Okay, maybe this guy was just stupid, but you'd think a computer expert would be able to encrypt all that stuff and have it self-destruct if someone tried too hard to break it open. Except for the phone calls--which never should have been made if there was a security risk. I'm no expert, but maybe the term "orgy of evidence," apparently invented for the film Minority Report, applies here. al-Marri could be a decoy planted by al-Qaeda to put us off the trail of the really important agents; or if you're really paranoid, you could theorize that all the evidence was planted by the government itself in order to create this test case out of whole cloth.
** Apparently the bill in question is the 2001 Authorization for Use of Military Force Against Terrorists, which is mentioned earlier in the article, but seems to apply only to those involved directly in the 9-11 attacks. The evidence for such involvement in al-Marri's case seems rather unclear. The main argument against him is that he may have been planning other attacks.
*** This judge doesn't know what the frak he's talking about. If you find a loaded gun in the room of your irresponsible and aggressive teenage son, who is known to get himself into fistfights on questionable pretexts, do you leave it there on the grounds that "he hasn't shot anyone yet?" If he goes off to college and leaves the gun there, do you just let his younger sibling move into his room without removing the gun? And since Congress can and will defend unconstitutional laws if it's politically expedient to do so, it's really up to the Judicial Branch to tell the Executive that it's simply not allowed to impose its own version of "justice" on American citizens.
"Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely. . . .
"A computer specialist, al-Marri was ordered to wreak havoc on the U.S. banking system and serve as a liaison for other al-Qaida operatives entering this country, according to a court document filed by Jeffrey Rapp, a senior member of the Defense Intelligence Agency.
"When investigators looked through [al-Marri's] computer files, they found information on industrial chemical suppliers, sermons by bin Laden, how-to guides for making hydrogen cyanide and information about chemicals labeled 'immediately dangerous to life or health,' according to Rapp's court filing. Phone calls and e-mails linked al-Marri to senior al-Qaida leaders.*
"In early 2003, he was indicted on charges of credit card fraud and lying to the FBI. Like anyone else in the country, he had constitutional rights. He could question government witnesses, refuse to testify and retain a lawyer.
"On June 23, 2003, Bush declared al-Marri an enemy combatant, which stripped him of those rights. . . .
"A military brig allowed more options. Free from the constraints of civilian law, the military could interrogate al-Marri without a lawyer, detain him without charge and hold him indefinitely. . . .
"'The president is not a king and cannot lock people up forever in the United States based on his say-so,' said Jonathan Hafetz, a lawyer who represents al-Marri and other detainees. 'Today it's Mr. al-Marri. Tomorrow it could be you, a member of your family, someone you know. Once you allow the president to lock people up for years or even life without trial, there's no going back.' . . .
"Glenn Sulmasy, a national security fellow at Harvard, said . . . [t]hat's how Congress wrote the bill** and 'if they feel concerned about civil liberties, they can tighten up the language,' he said.
"That would require the politically risky move of pushing legislation to make it harder for the president to detain suspected terrorists inside the U.S. . . .
"The last decision, a 2-1 ruling by a 4th U.S. Circuit Court of Appeals panel, found that the president had crossed the line and al-Marri must be returned to the civilian court system. Anything else would 'alter the constitutional foundations of our Republic,' the judges said.
"The full appeals court is reviewing that decision and a ruling is expected soon. During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war.
"'What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?' Judge William B. Traxler asked.
"'Yes, your honor,' Justice Department lawyer Gregory Garre replied.
"The court seemed torn.
"One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.***
"Another judge said the question is not whether the president was generous in his use of power; it is whether the power is constitutional.
"Whatever the decision, the case seems destined for the Supreme Court. In the meantime, the first military trials are set to begin soon against detainees at Guantanamo Bay. Al-Marri may get one, too. Or he may get put back into the civilian court system. For now, he waits."
* Okay, maybe this guy was just stupid, but you'd think a computer expert would be able to encrypt all that stuff and have it self-destruct if someone tried too hard to break it open. Except for the phone calls--which never should have been made if there was a security risk. I'm no expert, but maybe the term "orgy of evidence," apparently invented for the film Minority Report, applies here. al-Marri could be a decoy planted by al-Qaeda to put us off the trail of the really important agents; or if you're really paranoid, you could theorize that all the evidence was planted by the government itself in order to create this test case out of whole cloth.
** Apparently the bill in question is the 2001 Authorization for Use of Military Force Against Terrorists, which is mentioned earlier in the article, but seems to apply only to those involved directly in the 9-11 attacks. The evidence for such involvement in al-Marri's case seems rather unclear. The main argument against him is that he may have been planning other attacks.
*** This judge doesn't know what the frak he's talking about. If you find a loaded gun in the room of your irresponsible and aggressive teenage son, who is known to get himself into fistfights on questionable pretexts, do you leave it there on the grounds that "he hasn't shot anyone yet?" If he goes off to college and leaves the gun there, do you just let his younger sibling move into his room without removing the gun? And since Congress can and will defend unconstitutional laws if it's politically expedient to do so, it's really up to the Judicial Branch to tell the Executive that it's simply not allowed to impose its own version of "justice" on American citizens.
