Does the Military Commission Act Apply to U.S. Citizens?

Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.

First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.

But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.

Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission. 

My conclusion:  A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.

Return of the Liberal Interventionists

When Chris Preble and I released “Failed States and Flawed Logic,” the Dean of the Wilson School at Princeton, Anne-Marie Slaughter, offered what I thought was a pretty cutting critique. While admitting that “Rhetorically, the distinctions between these positions…are relatively easy to elide,” Slaughter criticized Chris and me thus:

Preble and Logan lump together such unlikely bedfellows as Robert Kaplan, Niall Ferguson, Frank Fukuyama, Steve Krasner, Gerald Helman and Steve Ratner, David Laitin and James Fearon, Sebastian Mallaby, Max Boot, Tony Lake and the entire Clinton foreign policy team as neo-colonialists — all perceiving the principal threat to the U.S. as failed states and the optimal solution as a new era of colonialism, with far more altruistic motives and international supervision. Preble and Logan in turn worry that all of this is a justification for a massive nation-building enterprise that will ignore sovereignty and usher an extraordinarily costly and difficult era in which the U.S. will take on the task of turning all “bad” or weak states into mature democracies to ensure our safety, using military and non-military means.

I thought this was a pretty good point. After all, there’s got to be some daylight between, say, Max Boot, an open advocate of American Empire, and, say, Anthony Lake, no? 

Well, crack open the op-ed page of the Washington Post this morning, and you get this from Brookings’ Susan Rice, Anthony Lake, and Donald M. Payne, on what to do in Sudan. Get ready:

It’s time to get tough with Sudan again.

After swift diplomatic consultations, the United States should press for a U.N. resolution that issues Sudan an ultimatum: accept unconditional deployment of the U.N. force within one week or face military consequences. The resolution would authorize enforcement by U.N. member states, collectively or individually. International military pressure would continue until Sudan relented.

The United States, preferably with NATO involvement and African political support, would strike Sudanese airfields, aircraft and other military assets. It could blockade Port Sudan, through which Sudan’s oil exports flow. Then U.N. troops would deploy — by force, if necessary, with U.S. and NATO backing.

If the United States fails to gain U.N. support, we should act without it. (Emphasis mine.)

All of a sudden, I’m not so sure any more that Slaughter’s critique holds all too well. 

The real difference between the neoconservatives in the Bush administration and the liberal interventionists on the other side of the aisle seems to be that for Bush’s interventions, there’s at least a plausible, not to say persuasive, case that American interests are at stake. 

In the case of the Dems’ preferred guerre du jour, there’s simply no national interest justification; the case for war, in this case, is made in the hazy language of international law and in contravention of the principle of sovereignty itself. (Indeed, Sudan has reportedly provided helpful cooperation in the war on terror, something that does affect the U.S. directly.) 

For liberals, as for neocons, states only get to be states when we say so, and apparently Susan Rice and Anthony Lake have taken it upon themselves to determine that Sudan’s statehood isn’t acceptable anymore.

The tendency to make all the world’s troubles our own, the ultimate disregard for the United Nations and beneath it the entire Westphalian order, the false hope in the utility of military power to solve protracted political problems…these fundamental principles are all shared by the Bush administration. Given that the WaPo op-ed’s authors are representative of the Dems’ heavy hitters on foreign policy, maybe it’s too early to get excited that Dems could bring a less militaristic foreign policy, should they grab the reins from the Republicans. The wars they’ll start will just be further detached from genuine U.S. interests.

Evidence from Thee, but Not from Me

Via the Healthcare Economist and Health Care Renewal, I was led to a recent editorial in the BMJ (formerly the British Medical Journal):

[In the National Health Service,] something important is quietly dying. I don’t think it is too fanciful to call it the spirit of medical professionalism. And we, the medical profession, are watching it die….

[F]ar from being privatised, medicine in England has become ever more a creature of the state….

[A]lthough medicine has embraced the need for evidence-based medicine, policy making remains largely an evidence-free zone.

Politicians consolidating and centralizing power…government sucking the soul out of a profession…ho-hum. It was the last line that really caught my attention. 

I’ve noticed the same tendency on this side of the pond. For example, policymakers such as Sen. Chuck Grassley, Rep. Nancy Johnson, and the Institute of Medicine want Medicare to cook up “pay-for-performance” financial incentives that reward providers who deliver what the evidence suggests is “quality” care. You know, pay them to follow the evidence. As Forrest Gump might say, that’s a fine idea. The only problem is, private insurers have been trying that idea for 10 years, and there’s scant evidence to show that it actually works. 

Personally, I think “P4P” has the potential to do a lot of good. But in a recent paper on the topic, I had to note the irony:

The P4P movement proceeds from two premises: first, that clinicians tend to underuse evidence from randomized clinical trials and, second, that financial incentives can increase such use and improve the quality of care. Yet whatever enthusiasm exists for P4P is not derived from the type of evidence of effectiveness that P4P enthusiasts believe should guide clinical practice. Third-party financial incentives remain an unproven tool for improving health care quality at all, let alone in a cost-effective manner.

New at Cato Unbound: Markos “Kos” Moulitsas on Libertarian Democrats

The October edition of Cato Unbound is now underway with a new essay making “The Case for the Libertarian Democrat” by Markos Moulitsas, proprietor of the web’s most popular political blog, Daily Kos. Bruce Reed, president of the Democratic Leadership Council, Harold Meyerson, editor of the American Prospect, and Nick Gillespie, editor-in-chief of Reason will reply.

Looking to next month’s midterm elections, this month’s topic is “Should Libertarians Vote Democrat?” Here’s the lowdown about this issue:

In over a half-decade of Republican political dominance, Americans have witnessed a huge expansion in the scope and cost of government, a questionably justified and so-far unsuccessful war in Iraq, serious erosions of civil liberty, and a troubling tendency toward an imperial executive. Is it time for the traditional alliance between libertarians and conservatives to finally end? If Republicans in power have failed so utterly to promote libertarian ideals, would libertarians better advance their cause by supporting Democrats at the polls? Of course, the fact that libertarians have been so badly abused by conservatives doesn’t necessarily imply they will find a more welcoming home among liberals. Is the Democratic tent big enough to include small-government free-marketeers? Perhaps libertarians have something to gain by supporting to Democrats, but does the Democratic party have anything to gain by courting libertarians?

A Disservice to the Poor

There’s much ado at the Legal Services Corporation (LSC), the federally funded organization intended to provide legal assistance to the poor.

Last month, the AP catalogued a pattern of excessive spending at the LSC. Then, as I indicated in my National Review Online article, the LSC Board contemplated firing the employee who had unearthed much of the extravagance. This employee, LSC Inspector General Kirt West, has also found other questionable practices at the LSC and begun an investigation of the Board itself. 

Earlier this week, at a congressional hearing, the chairman of the LSC Board denied that board members had considered dismissing West. This was shocking given strong evidence to the contrary — namely, meeting transcripts from January in which the board’s vice-chair said of West, “[H]e’s got to shape up or we will ship him out.” At the same meeting, another board member said flatly, “He doesn’t belong as the Inspector General of this organization.” 

This is yet another sorry chapter in the history of the LSC. For over 20 years, this organization has continued to misuse taxpayer dollars to advocate political causes. Is it time to pick up the mantle of Ronald Reagan and finally abolish the LSC?

Defending the Constitution

Republican Sen. Arlen Specter expects the Supreme Court to invalidate a law that he voted for:

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.

Don’t be surprised if one or two Supreme Court justices respond with something like this: “This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.” 

As I point out in this paper, too many people seem to think that the Constitution will somehow automatically check the government when it goes too far. Not so. The Constitution cannot enforce itself. This latest episode in anti-terrorism legislation shows that we have not broken out of a vicious political cycle and that’s a very bad indication of the political and legal trends in America.

Republican Congressman Demands Answers!

Via Doug Bandow, here’s an illustration of the depth of analysis we’ve come to expect from our Congress on foreign policy issues:

Why do they hate each other? Why do Sunnis kill Shiites? How do they tell the difference? They all look the same to me.
Trent Lott

Let’s not wonder why we’re in such a mess overseas. This tells you all you need to know. God help us.