Oregon State Bar Bulletin — NOVEMBER 2006

Parting Thoughts
Playing the Patriot, Part II
By Philip F. Schuster II

You are an Oregon lawyer representing permanent resident aliens who have extended families in the Middle East or South Asia. Your clients donate to international relief agencies supporting disaster relief, or conduct business with overseas firms. Unbeknownst to one of your clients, one of the charities or business firms is funneling money to terrorists. Your client is brought in "for questioning," then disappears without a trace. Think it can’t happen here? Think again.

Congress’ recent enactment of the Military Commissions Act of 2006 (the MCA) creates a brave new world of government by secrecy in which attorneys representing legal aliens in Oregon and across the United States must navigate.

The MCA defines "unlawful enemy combatant" as "(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents … ( ) 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 enactment of the (MCA), has been determined to be an unlawful enemy combatant by a … tribunal established under the authority of the President or the Secretary of Defense". MCA § 3(a).

You soon realize that your client cannot expect a trial by his or her peers or any other normal protections of the Bill of Rights, such as the right to a speedy trial. MCA §§ 3(a), 4.

Your client’s family wants you to file a writ of habeas corpus to determine where your client is being held, and to adjudicate his or her status as an "unlawful enemy combatant." You must tell the family that the law prevents you from doing this. MCA §§ 3(a), 7. You must also tell your client’s family that their spouse, parent or relative can be held indefinitely, as the MCA prohibits any court from having jurisdiction to hear an application for a writ of habeas corpus "pending on or filed after the date of enactment". MCA §7.

How your client is treated and interrogated during his or her indefinite period of detention is left entirely to the president or the secretary of defense, as no person may now invoke "in any habeas corpus action or other civil action" the protections of the "Geneva Conventions or any protocols thereto … as a source of rights". MCA § 5. No longer do any constitutional or international law standards govern the detention of so-called "unlawful enemy combatants."

You tell your client’s family that they must embark on a long and expensive mission if they ever want to see their loved one go free again.

The MCA, on its face, cannot trump the constitutional enshrinement of the Great Writ of habeas corpus, which dates to the Magna Carta of 1215. The U.S. Constitution, Article 1, § 9, declares that the Great Writ "shall not be suspended" unless there is a rebellion or invasion, neither of which presently exists. Following the Civil War, the U.S. Supreme Court declared President Lincoln’s suspension of the writ unconstitutional, ruling in Ex Parte Milligan that when a civilian court exists, a U.S. citizen cannot be tried in a military court.

The MCA is also made retroactive. On its face, the MCA constitutes an ex post facto law and violates the separation of powers doctrine, insofar as giving this president unilateral retroactive power to interpret and abrogate the Geneva Convention, a treaty now part of the law of the United States. MCA §§ 3(a), 6(a)(3), 7(b).

Arguably, the MCA is also a constitutionally prohibited bill of attainder. First, the MCA "designates in no uncertain terms the persons who possess the feared characteristics," namely members of "the Taliban, al Qaeda, or associated forces". MCA § 3(a); United States v. Brown, 381 US 437, 450 (1965). Secondly, the act imposes punishment, including but not limited to, indefinite detention without trial, for reasons that are not reasonably calculated to achieve the non-punitive purpose of protecting the nation from terrorist acts. Finally, the MCA lacks provisions for judicial trials as well as other normal protections of the Bill of Rights.

Some will welcome the MCA as a much-needed tool to fight the War on Terror. Others will see the MCA as a product of cynical, disingenuous lawmaking engaged in before an off-year election by sponsors hoping to get votes, but expecting that the MCA will not pass constitutional muster. However, such political posturing amounts to a very dangerous game of legislating a presidential dictatorship — a precipice from which our nation may find difficult to withdraw.

It is fervently hoped that those Supreme Court justices who espouse the strict constructionist/originalist interpretation of the Constitution will remain faithful to their philosophies and to their oaths as guardians of our Constitution and will strike down this antithesis of the War on Terror, which does nothing but eviscerate our Constitution and weaken our democracy.

ABOUT THE AUTHOR
The author is a partner in the Portland firm of Dierking & Schuster and an author.

2006 Philip F. Schuster II


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