Sen. Christopher Dodd, a Connecticut Democrat with presidential aspirations and a large war chest, has introduced legislation that would significantly alter the Military Commissions Act passed last fall by defining narrowly what it means to be an “enemy combatant” and would restore habeas corpus rights to all detainees in U.S. custody. The proposal is a step in the right direction, after a federal appeals court upheld the sweeping law Tuesday.
But in some important ways, Dodd’s attempt to roll back unchecked military detentions fails to recognize the challenge of defeating enemies who don’t wear uniforms or follow the rules of war.
The Military Commissions Act was written in response to a 2004 Supreme Court decision that rejected the way prisoners at Guantanamo Bay were being handled. In denying access to U.S. courts to those accused of being enemy combatants, however, the law went farther than is justified.
As Robert Levy, a legal scholar at the libertarian Cato Institute, explained, the Constitution doesn’t guarantee the right of habeas corpus — having an independent judicial body review whether the confinement or imprisonment of a person is legally justifiable — to non-U.S. citizens.
“I wouldn’t favor habeas rights for battlefield detainees,” he said-. But the Military Commissions Act stripped “all persons, including U.S. persons, of this important right.” That means legal residents of the U.S. who do no more than “support” a terrorist group — perhaps by donating to an ostensibly charitable groups with unseemly connections — could be tried as an enemy combatant.
Dodd’s bill would define “enemy combatants” as one who “directly participates in hostilities in a zone of active combat against the United States,” and would bar the government from introducing evidence obtained through coercive interrogations.
While the current administration’s definition of “enemy combatant” — essentially anybody so designated by the president — is far too broad, the definition in Dodd’s proposal may be too narrow.
Another measure has been introduced by Senate Judiciary Committee Chairman Patrick Leahy, the Vermont Democrat, and Republican Arlen Specter of Pennsylvania. This bill would simply restore the habeas right to all foreign prisoners in U.S. jurisdiction. That may be too broad as well.
Some prisoners at Guantanamo have been cleared by military interrogations and preliminary tribunals and are still imprisoned.
That is outrageous and they certainly deserve the chance to contest their confinement in a civilian court. But not all of those at Guantanamo fit the bill.
Congress will subject these two bills to the committee process, which should lead to needed revisions. The best bet would probably be a slightly narrower version of the Leahy-Specter proposal. But some revision of last fall’s Military Commissions Act is certainly in order.