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MJDuncan1982's Journal
Posted by MJDuncan1982 in General Discussion: Presidential (Through Nov 2009)
Wed Oct 18th 2006, 04:10 PM
Many threads have discussed the recently signed Military Commissions Act of 2006 (MCA) and its effect on habeas corpus. The media, to a limited degree, have picked up on the story - most notably, Keith Olbermann.

In response to the high level of interest, I would like to see DU consolidate the discussion in one thread.

There are two main issues regarding the MCA: (1) Whether the denial of the writ of habeas corpus applies to citizens of the United States and (2) Whether the writ of habeas corpus can (and further, should), as a matter of human rights, be denied to any human being, regardless of citizenship.

This thread is concerned with the first issue. The second issue, and any other issues, are not intended to be discussed here.

Issue 1: Whether the denial of the writ of habeas corpus applies to citizens of the United States.

28 U.S.C. 2241(a):

Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.


This provision authorizes the issuance of the writ of habeas corpus pursuant to Article I, 9, clause 2 of the United States Constitution. The authorization is general with certain exceptions, which were amended by the MCA:

S. 3930, 7:

(a) {28 U.S.C. 2241} is amended by ... inserting the following new subsection (e):

(e)(1) No court, justice, or judge 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.


Therefore, the writ of habeas corpus is authorized by Congress except when "filed by or on behalf of an alien".

However, there has been some confusion because of the definition of an enemy combatant. Under the MCA, an enemy combatant can either be unlawful or lawful.

S. 3930, 948(a)(1)(A) and (2):

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.

The term 'lawful enemy combatant' means a person who is:

(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.


948(a)(2) requires that a person be a member of the regular forces or militia of a State or a member of a regular force not recognized by the United States but that professes allegience to a government. This section is not the cause of concern.

948(a)(1) requires that a person be engaged in hostilities against the United States and not be a lawful enemy combatant. This section causes concern among many people because the section merely requires "personhood" which can seemingly be applied to citizens of the United States.

However, it is my opinion that this is not the case.

The MCA clearly limits its denial of the writ of habeas corpus to aliens. Of those which meet the definition of an alien, the MCA further limits its denial of the writ of habeas corpus to those aliens which are enemy combatants. An enemy combatant is defined as either unlawful or lawful. The definition of lawful, again, is not the cause of concern. The definition of unlawful has three elements: (1) personhood, (2) engagement in hostilities against the United States and (3) not a lawful enemy combatant.

It is clear that the word "person" within the definition of unlawful enemy combatant is qualified when denial of the writ of habeas corpus is concerned. Only those persons who are unlawful enemy combatants AND are aliens are denied the writ.

It is also clear that a citizen of the United States can be classified as an unlawful enemy combatant. However, the MCA only denies the writ to aliens who are so classified.

S. 3930, 948(a)(3):

The term 'alien' means a person who is not a citizen of the United States.


The definition of an alien specifically excludes a citizen of the United States.

Therefore, the MCA does not deny the writ of habeas corpus to citizens of the United States.
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