A Vast Last-Minute Expansion to the Military Commissions Bill

05/25/2011 11:55 am ET
  • Shayana Kadidal Senior managing attorney at the Center for Constitutional Rights

Congress is on the verge of passing a military commissions bill that would authorize the indefinite detention, without access to the courts, of non-citizens detained inside or outside of the United States--even if they are not charged with any crime. What began as legislation to regulate the trials of men at Guantánamo has grown so sweeping that it would encompass any non-U.S. citizen picked up anywhere in the world, even permanent legal residents detained inside the United States. This is being voted on in the House of Representatives today and will likely be voted on in the Senate tonight or on Thursday. Senators Specter and Levin will be introducing a bipartisan amendment to remove a provision that denies these non-citizens access to courts. It is essential that you call your Senators and urge them to vote for the Specter Amendment to remove the jurisdiction-stripping provision from the military commissions bill. Particular Senators that we are targeting are Senators Hagel (R-NE), Lugar (R-IN), Sununu (R-NH), Chafee (R-RI), Lieberman (D-CT), DeWine (R-OH), Collins (R-ME), Snowe (R-ME), and Menendez (D-NJ). (Their numbers are all listed below.)

The White House made drastic changes to the military commissions bill over the weekend. The new version of the bill includes an expansive definition of an unlawful enemy combatant to include anyone determined by any form of executive-branch panel to be an unlawful enemy combatant. The bill would deny anyone determined to be an enemy combatant - or anyone "awaiting such determination" - the right to challenge their detention, treatment, or conditions of confinement in court.

"Enemy combatant" doesn't just mean people fighting with the Taliban or Al Qaeda. It also includes people accused of giving "material support" to hostilities against the United States. It's unclear what the definition is in the current bill. In the past, the government's definition of "material support" has been an open ended one. We at CCR have been challenging the federal criminal statute prohibiting "material support" to foreign groups on State and Treasury Department terrorism blacklists since 1998, and we've won three times before the district court and twice before the Court of Appeals on claims that the law is, in the court's words, so vague that it "could be construed to [criminalize] unequivocally pure speech and advocacy protected by the First Amendment." In court the government has repeatedly said that merely teaching English or international law, political advocacy, or how to petition the United Nations can constitute material support if the person on the receiving end happens to be affiliated with a blacklisted group. So saying only "enemy combatants" can be detained without court review is no limitation at all when anyone guilty of teaching English to someone affiliated with any of the thousands of blacklisted groups qualifies as one. (Lest you think I'm exaggerating, the law on "material support" is even worse in the asylum context, where claims have been rejected because villagers gave a glass of water to militia groups at gunpoint (see page 18 of the linked report for one example).)

There are over 35 million non-citizens currently living in the United States. The new provisions in the military commission bill would allow any one of them to be imprisoned indefinitely without their day in court. There is reason to fear that they could be investigated, detained, interrogated, and tortured without judicial remedy. While U.S. law prohibits torture, this bill would deny access to the courts to bring a torture claim.

This monstrosity could be voted on tonight or tomorrow morning, and the key moderate votes are very, very close. As we've explained before, your calls make a big difference. Here are the key Senators and their contacts:

Lincoln Chafee (R-RI) - (202) 224-2921
Fax: (202) 228-2853
Chief of Staff: David Griswold
Legislative Director: Deb Brayton
Military Legislative Assistant: William Ralph

Susan Collins (R-ME) - (202) 224-2523
Phone: (202) 224-2523
Chief of Staff: Steve Abbott
Legis. Dir.: Jane Alonso
Military LA: MacKenzie Eaglen

Mike DeWine (R-OH) - (202) 224-2315
Fax: (202) 224-6519
Chief of Staff: Laurel Pressler
Legis. Dir.: Paul Palagyi
Military LA: Stacie Oliver

Chuck Hagel (R-NE) - (202) 224-4224
Fax: (202) 224-5213
Chief of Staff: Lou Ann Linehan
Legis. Dir.: Jill Konz
Military LA: Fran DuFrayne

Joseph Lieberman (D-CT) - (202) 224-4041
fax: (202) 224-9750
Chief of Staff: Clarine Nardi Riddle
Legis. Dir.: Joe Goffman
Military LA: Fred Downey

Richard Lugar (R-IN) - (202) 224-4814
Fax: (202) 228-0360
Chief of Staff: Marty Morris
Legis. Dir.: Chris Geeslin
Military LA: Keri Maloney

Robert Menendez (D-NJ) - (202) 224-4744
Fax: (202) 228-2197
Chief of Staff: Ivan Zapien
Legis. Dir.: Chris Schloesser
Military LA: Jessica Lewis

Olympia Snowe (R-ME) - (202) 224-5344
Fax: (202) 224-1946
Chief of Staff: John Richter
Legis. Dir.: Ray Krncevic
Military LA: Sam Horton

John Sununu (R-NH) - (202) 228-2841
Fax: (202) 228-4131
Chief of Staff: Paul J. Collins, Jr
Legis. Dir.: Jamie Burnett
Military LA: Dave Cuzzi

Thankfully the surveillance bills appear to be dead for now, with irreconcilable differences between House and Senate versions. It's been a curious week: with the bloodletting at Hewlett-Packard and with New York's Republican Attorney General candidate Jeanine Pirro under investigation by the United States Attorney's Office in Manhattan for asking disgraced DHS-Secretary-Reject Bernard Kerik to secretly tape her wayward husband (I'm not making any of that up!), it seems like every other institution in the nation has higher standards for spying oversight than the Bush administration does. But more on that later. Call your Senators now!

--September 27, 2006

(p.s. Thanks to the commenter for the correction to Senator Sununu's phone number. And check out the New York Times editorial on the bill.)