more on military commissions act and citizens

Back in October, I wrote a short post about the Military Commissions Act of 2006 and its impact on citizens. I had a chance last night to ask my Representative about it, but it's hard to give a good answer in a group setting, so I sent a follow-up e-mail. We'll see what comes of it. In the meantime, I wanted to expand a bit on the reason why I raised the issue in the first place.

• §§ 949a(1)(A) and 948d(c) of the act say one way to be an Unlawful Enemy Combatant is for a Combatant Status Review Tribunal or other competent tribunal under the President's authority to determine that you're one. The sections do not limit their scope to alien unlawful enemy combatants.
• §§ 948c and 948d(a) limit the jurisdiction of a military commission to alien unlawful enemy combatants.
• § 948a has separate definitions for "unlawful enemy combatant" and "alien," suggesting they're separable concepts.
• I could not find anything in the act that specifies whether or not the jurisdiction of a Combatant Status Review Tribunal, as opposed to a military commission, extends to non-aliens.

So the act talks about two different judicial bodies, a Combatant Status Review Tribunal and a military commission. How do we know they're different? For one thing, the act spends a lot of time defining a military commission but very little defining a Combatant Status Review Tribunal. For another, tribunals usually have three people (hence the name) but the act says commissions have at least five. § 948m(a). Combatant Status Review Tribunals decide whether or not you're an unlawful enemy combatant, and their answer is "dispositive." § 948d(C).

The act says they decide whether you're an "unlawful enemy combatant," not whether you're an "alien unlawful enemy combatant," but the military commissions only have jurisdiction over alien unlawful enemy combatants. So we have this odd situation where a Combatant Status Review Tribunal can find you're an unlawful enemy combatant, but if you're a citizen you're still outside the jurisdiction of the military commissions. Why?

Now the kicker. In Hamdi v. Rumsfeld, the Supreme Court's plurality said the executive branch can hold a citizen indefinitely only if the citizen has a chance to rebut the charge of being an "enemy combatant" before a neutral decisionmaker. So my question to the Representative is whether Congress, in the Military Commissions Act, handed the executive that neutral decisionmaker in the form of the Combatant Status Review Tribunal.

It'll be interesting to see how she responds.