Who may be tried under the Military Commissions Act of 2006?

• Author: Montano, Michael

"I want us to see the process of legislation ... as ... the representatives of the community com[ing] together to settle solemnly and explicitly on common schemes and measures that can stand in the name of them all...."--Jeremy Waldron, The Dignity of Legislation (1)

"Sit down, my son. We don't read most of the bills [that we vote on]."--U.S. Representative John Conyers (2)

INTRODUCTION I. THE GREAT WRIT AND THE GREAT WORRY II. TEXT A. The Jurisdictional Grant B. The Definition Section 1. A perplexing parenthetical 2. Surplus language and its political uses 3. Settling the issue? C. "Principals" and Offenses 1. New language 2. Statutory esotericism III. PRIMARY EXECUTIVE BRANCH ELABORATION: REGULATIONS A. Miscellanea B. The Rules' Take on Jurisdiction C. "Principals" and Offenses Redux: Resettling the Issue IV. HISTORY AND MEANING(S) A. Presidential Predisposition B. Congress's View V. META-ISSUES AND STRATEGY CONCLUSION INTRODUCTION

On October 17, 2006, seated in the East Room of the White House, President George W. Bush signed the Military Commissions Act of 2006 (3) (MCA) into law. (4) Moments before, he succinctly--if not entirely accurately (5)--recounted the Act's history:

In the months after 9/11, I authorized a system of military commissions to try foreign terrorists accused of war crimes.... [T]he legality of the system I established was challenged in the court, and the Supreme Court ruled that the military commissions needed to be explicitly authorized by the United States Congress. ... I asked Congress for that authority, and they have provided it. (6) But what exactly did the MCA grant our federal executive authority to do?

At the close of his speech, President Bush claimed that those who had supported the MCA were bequeathing to America a "freer, safer ... world." (7) But in the weeks preceding the bill's passage, many had vociferously disagreed with the President's characterization of the bill. (8) In editorials (9) and in legal web logs, (10) constitutional scholars were up in arms. Tellingly, complaints came from across the political-ideological spectrum, and at least one cable news anchor went so far as to denounce the MCA as the "[b]eginning of the end of America." (11) There seemed to be much to disagree over. Said one vocal law professor, "Choosing the most indefensible provision of this bill is a tall order--there are many worthy candidates." (12) Still, objections to the bill did coalesce around certain poles. Chief among detractors' concerns were provisions of the MCA appearing to provide the executive with the authority to try American citizens before military commissions or detain them indefinitely. (13)

Although some defenders of the law sought to put such worries to rest by arguing that the law only applies to aliens (i.e., noncitizens), (14) the intensity of dispute in public discourse over the meaning of the MCA reflects not just wishful or fearful thinking on the part of participants but deep ambiguity in the language of the statute itself. Indeed, in some respects, the MCA appears to lack coherence. (15) Yet, to date, no one has offered a systematic academic analysis of the law in an attempt to discern its "ultimate" meaning. (16)

As a work of statutory interpretation, that is the project of this Note. Like any exegesis, it might only be limited by the range of source materials available for study. However, in the interest of space, I have elected to examine only the major customary textual and historical sources available in the public record. Based on the statutory text of the MCA, Defense Department materials, public comments of the President, and legislative history, I attempt to answer the question: who may be tried under the MCA? There is no in pari materia analysis, nor any based on wide-ranging periodical research, for I am concerned neither with completely hypothesizing judicial interpretation nor with public construction of meaning.

Note, too, that this is not a work of constitutional interpretation as such; that is, even though quasi-constitutional principles of interpretation (17) may come into play, this Note does not aim to dispute the constitutionality of the MCA. Rather, it seeks to uncover what exactly the MCA purports to authorize and to sketch the limits of what the executive might claim it to authorize.

Given the executive branch's structural orientation towards self-aggrandizement and the commissions' ability to hand down death sentences, discerning now who may be tried under the MCA is vital if we are to know how strong the rule of law remains in our country. But there are further reasons for exploring this topic that get us to the heart of what the rule of law means that will not be affected by how courts, Congress, or the President weigh in on the MCA in the future. Courts may strike it down, Congress may repeal it, or future Presidents may refuse to enforce it. But even if any of those possibilities should come to pass, the MCA will stand as a testament to its historical moment, one we have not yet left behind and the echoes of which we may someday hear again. Considering its textual and contextual meaning, its substance and history, can, then, teach us much about how to write or not write a law, depending on what one's goals are and where one sits--the Capitol or the White House.

There are strong internal and external pressures on any presidential administration to embody the oft-repeated institutional virtues of the executive branch: flexibility and dispatch. (18) Internally, a President will want to exert control over the executive branch bureaucracy in order to efficaciously advance his or her broader policy agendum. Externally, a President will be politically rewarded for accomplishing the goals he or she was elected to meet. These pressures are never stronger than in the wake of a large-scale terrorist attack on domestic soil.

However noble the goal of protecting national security, a problem arises when an administration resorts to running roughshod over established precedent or to outright lawbreaking in its efforts to protect the great mass of voters. The situation grows even more complex when presidential policy and tactics both at times seem driven as much by substance as by an ideological commitment to expanding executive power or "restoring" it to some imagined ideal. (19)

Against this backdrop, enacting ambiguous legislation creates an alluring opportunity for executive lawmaking. In the linguistic space opened by a poorly written statute unencumbered by a robust legislative history, the executive will inevitably act, and it will do so in accord with its own vision of its proper constitutional role. Thus, uncovering the meaning of the MCA--the substantive provisions of which are still in force (20)--tells us something not only about the substance of the statute itself but about the various uses of legiscraft generally.

1. THE GREAT WRIT AND THE GREAT WORRY

   In Boumediene v. Bush, the Supreme Court recently invalidated provisions of the MCA attempting to suspend habeas corpus for detainees in the war on terror held at Naval Station Guantanamo Bay, Cuba (Guantanamo). (21) Yet, for the reasons outlined above, it is worth pausing to ponder the original scope of the legislation. In attempting to suspend the writ, the MCA reached for a vast expansion of presidential power:

   Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter. (22) If applicable to citizens and read in conjunction with the threat of indefinite detention and execution, (23) the MCA would have created a parallel world in which the executive has all but plenary authority over the ultimate fate of every American. In blunter times, we would call this "tyranny." (24)

   Because the Boumediene majority did not construe the MCA as a "formal suspension of the writ," (25) it did not undertake an independent assessment of the factual predicates that the Suspension Clause requires for legitimate congressional action under its terms. (26) Still, in order to shed light on the executive mindset informing its interpretation of the MCA in other areas, it is worth exploring briefly how the President might have tried to claim that the MCA enacted a formal suspension of the writ in order.

   The Constitution stipulates that the Great Writ may only be suspended when in times of "Rebellion or Invasion the public Safety may require it." (27) It does not appear that either rebellion or invasion--as those words are usually understood--currently plagues the United States. (28) Still, one can imagine the President claiming that the United States is under "invasion" by terrorists. Whatever one may think of the Bush Administration's view that unconventional conflict imbues words once thought clear in meaning with unconventional content, (29) it remains a political and legal fact that it believed that "war" is the proper paradigm for characterizing our conflict with terrorists (30) and construed its powers accordingly. Setting ambiguity to rest, President Bush proclaimed, "The war on terror is no figure of speech." (31) (Incidentally, the Obama Administration, or at least some elements within it, appears to agree. (32))

   The Bush Administration also believed that terrorists are present in the United States. (33) Indeed, in remarks on the day President Bush transmitted his draft proposal of the MCA to Congress, he pressed both of these points. He referred to our conflict with terrorism...