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.