With the current Republican pedophile scandal and cover-up dominating the headlines, you may have missed what happened last week. On Thursday, September 28, Congress passed a law that effectively destroyed the Bill of Rights. The name of the bill that killed it sounds benign enough, “The Military Commissions Act of 2006.” But with its passage the last vestiges of our constitutional republic disappeared.

Before looking at the Act itself, a little background is necessary. In June of this year the Supreme Court struck down the Executive’s use of military tribunals in determining the status of enemy combatants. The majority opinion of the 5-3 ruling in the Hamdan case (Chief Justice Roberts recused himself since he was on the Appeals Court that had previously ruled in favor of the tribunals) was written by Justice Stevens. In it he argued that the military tribunals were in violation of both military and international law. In a concurring opinion, however, written by Justice Breyer and joined by Justices Ginsburg, Kennedy, and Souter, Breyer maintained that “Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” In other words, four of the five Justices who declared the President’s use of military tribunals illegal did so on the grounds that it lacked Congressional approval. The implication of this being that if the President were to get approval from Congress, the use of military tribunal would face no opposition from at least seven of the Supreme Court Justices (the four who signed the concurring opinion along with the Scalia, Thomas, and Alito who were already on board).

The President immediately began a drive to get Congress to retroactively approve of his illegal program. And with prospect of the Republicans losing one or both Houses of Congress in the November elections, time was of the essence. So with the aid of White House lackeys in Congress, a bill was introduced, at the President’s behest, which would, in effect, side step the Court’s ruling in the Hamdan case by granting the Executive the power to hold military tribunals. The only thing left to do before passing the bill (its passage was a foregone conclusion) was to put on a bit of a show.

As you may know, a few Senate Republicans pretended to oppose the legislation, maintaining that the original bill was too vague, that it could serve to dismantle the right to habeas corpus, and that it gave the Executive Branch a free hand in interpreting the Geneva Convention’s definition of torture. This gave the impression that a serious debate was taking place. Congress would not sit idly by and let the President steam roll them in his effort legalize his program that allowed him to unilaterally decide both who was an illegal enemy combatant and what constitutes torture. And so a “compromise” was reached. And since it was a “compromise” everybody was supposed to conclude that Congress stood up to the President and curtailed his draconian agenda. This, at least, was the spin. The reality is that a “compromise” bill, the “Military Commissions Act of 2006,” does nothing of the sort. It gives the President substantially everything he wanted.

Now that we are up to speed, we can turn to the Act. But rather than giving an overview of it (such an overview can be found here, here, here, and here) I shall concentrate on just one small part of it. Here is the relevant portion:

“Sec. 948a. Definitions

“(1) UNLAWFUL ENEMY COMBATANT-

“(A) The term `unlawful enemy combatant’ means –

“(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (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 the enactment of the Military Commissions Act of 2006 , has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

It would be easy to gloss over this section (definitions, after all, are a bit boring) and go right to the juicier sections on torture. But while the torture issue is important, this is the section that contains the real devilry.

There are two major problems with the Act’s definition. First, section (i) defines an ‛unlawful enemy combatant’ as one who “is not a lawful enemy combatant.” If you don’t believe this is what it says, read it again. And though logically unassailable (one can no more deny that a man who is not a lawful enemy combatant is an unlawful enemy combatant than he can deny that a man who is not married is unmarried), it is unfortunately a tautology. It asserts that what is the case is the case. No criteria are given as to how to determine whether somebody is an unlawful combatant. No tests are specified. So while logicians may be impressed with the fine application of Aristotle’s principle of identity – each thing is what it is and is nothing else – lawyers and judges will have a good deal of difficulty figuring out exactly how to apply this definition.

But while failing to give a satisfactory intensional definition, the Act does offer something of an extensional one. Members of the Taliban and al Qaeda are considered to be illegal enemy combatants. Or to put it another way, the set of illegal enemy combatants includes Taliban and al Qaeda as members. While perhaps better than the intensional definition, this definition has its own difficulties.

1) How is it (or was it) determined that an enemy combatant is a member of one of these organizations? Who has the authority to decide this? What rules of evidence are allowed? Do the accused have access to legal counsel? Though this section answers none of these questions, we do know that those who have already been determined to be members of al Qaeda or the Taliban were determined so either by military tribunals or by a fiat declaration from administration officials. And we also know that most of the alleged members of these groups were not allowed to have attorneys represent them. Thus we are left with having to take the word of the Executive Branch and military that those detained for being members of the Taliban or al Qaeda are indeed members of these organizations.

2) It is not only members of the Taliban and al Qaeda who are deemed illegal enemy combatants, but so are “associated forces.” But what constitutes “associated forces”? If somebody gives money to a mosque which in turns gives money to al Qaeda, does this qualify as one as an associate of al Qaeda? What if somebody writes an e-mail to al Qaeda operatives in which he expresses his support for their actions? Is he an associate? Or what if somebody expresses doubt about the existence of al Qaeda as an independent terrorist organization? Does such a doubt undermine the “War on Terror” by giving aid and comfort to the enemy and thus constitute an association? Section (i) offers no guidelines.

3) The most objectionable part of this extensional definition is the word “including.” Not only are members of the Taliban and al Qaeda, along with their associates, defined to be members of the class of illegal enemy combatants, but others, perhaps, as well. But are there other individuals or organizations that fall under this provision? If so, who or what are they? And who determines what these organizations are? This section gives no answers. And so even construed as giving an extensional definition, section (i) is, in practice, useless – extensional definitions only work if each member of the class is specified. Since the definition leaves the class open, it is no definition at all.

4) This section is so odd, so loosely written that it is difficult to believe that it would ever be included in the legislation unless there was something going on beneath the surface. And given section (ii), which we shall turn to presently, it also appears to be unnecessary since section (ii) clearly states the that it is military tribunals that determine who an illegal enemy combatant is “before, on, or after the date of the enactment.” In other words, it retroactively makes legal what the Supreme Court declared to be illegal in the Hamdan ruling. So why section (i)?

My guess is that the Bush administration and in particular members of the Department of Defense, have previously not even bothered to go through the motion of having military tribunals to determine the legal status of enemy combatants. Or if they did, perhaps some military judges demanded more than some bureaucrat’s says so; perhaps they wanted evidence. So it may be that the President and his Defense Department staff did an end run around the formality of holding military tribunals in some cases. If this is true, and I do not know if it is, they realized that they had to be given legislative exoneration for not holding tribunals in some cases in order to avoid potential criminal charges. Maybe there is some other explanation. But if there is, it is beyond my imagination to conceive of what it may be.

The second problem concerns section (ii). Here an “illegal enemy combatant” is defined as one who has been deemed such by “a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” In other words, a military court decides who is an illegal enemy combatant. At first glance this is a good deal better than section (i). For though it offers no definition of “illegal enemy combatant” (see 2 below), it at least clearly states who determines whether a combatant is legal or not. But while an improvement, it too suffers from several deficiencies.

1) The most glaring deficiency is that it is unconstitutional. Here is what the Constitution says in Article I section 8: Congress has the authority “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” In enumerating the powers of Congress, the Constitution explicitly states that it (Congress) and it alone has the authority to make rules concerning captures, or as we would say today, prisoners of war. The problem with the Act, therefore, is that it illegally turns Congressional power over to the Executive Branch. In effect, it declares that the Commander-in-Chief of the armed forces now has the power to make rules concerning captures on land and water.

Some may argue that the Congress has not turned over its powers to the executive, but has merely delegated them in accordance with Breyer’s concurring opinion to the Hamdan case. But this argument is spurious. And the reason is quite simple. The Act does not merely delegate the execution of Congress’s rules concerning captures. There would be nothing objectionable about that. But it goes beyond this. It also delegates the making of the rules to the Executive. As has been show above and will be shown below, the Act nowhere specifies any rules for determining who is and who is not an illegal enemy combatant. The rules are, thus, left to the President and his lawyers to make up. This being the case, the Congress has, for all practical purposes, amended the Constitution without bothering to go through the rigorous process outline in Article V.

To illustrate why this is the case, take the following examples. In the same section where Congress is given the power to make rules concerning captures, it is also given the power to declare war. Now suppose that Congress voted to give the Executive Branch this authority. That is, suppose Congress passed a bill that declared that the President may unilaterally declare war. Would this be constitutional? If you are unsure, take another example. Suppose Congress voted to turn over its authority to collect taxes to the Supreme Court. On a simple majority vote of the House and Senate would the Court, thus, be empowered to oversee the collection of taxes? Or more absurdly, suppose Congress delegated its authority to establish post offices and roads to the city council of Lynchburg, Virginia or the Rotary Club or the AFL-CIO. Would this be constitutional? To ask it is to answer it. Congress cannot give away its authority to another organization or another branch of government without amending the Constitution.

Thus, Congress alone has the authority to make rules concerning captures. For it to turn over its authority to the Executive (via its military tribunals) without specifying the rules it is to follow is unconstitutional. This leads to the next problem.

2) Nowhere does the Act specify how a military tribunal is to determine whether somebody is an illegal combatant. Congress offers no strictures and no guidelines. Military tribunals are left free to determine the legal status of enemy combatants in whatever way it sees fit. And just to bring this point home, there is no provision for congressional oversight or review. Congress has effectively wiped its hands clean of the matter.

3) There is a frightening implication to the Act’s “definition.” Section (ii) does not define who may be tried by a military tribunal for purposes of determining whether they are illegal combatants. This opens up the possibility that American citizens will be subject to such tribunals. With almost no congressional constraints, the Executive is free to determine who is liable to be deemed an illegal combatant. And just in case you think this is unlikely, remember that an American citizen, Jose Padilla, has already been declared to be an illegal enemy combatant by a military tribunal. The Justice Department did eventually indict him on conspiracy charges just before his case was to be heard by the Supreme Court (fearing his detention would be declared illegal), but given the passage of the Military Commissions Act, there is no reason to believe that in the future citizens would not be handled in a like manner.

What we have, then, is not only the Congress turning over its constitutionally mandated authority, but the potential for citizens being turned over to military courts. And if the Executive Branch declares an American citizen to be an illegal enemy combatant by means of a military tribunal, he will be deprived of his Fourth, Fifth and Sixth Amendment rights. Indeed, he will be effectively deprived of these rights the moment he is accused of being an enemy combatant since the defendant will be subject to military law; and military law does not afford the defendant the same rights as the Constitution.

Some will still, no doubt, object to the title of this essay and reason that while the Act is a bit sloppy, there is no reason to overreact by declaring the Bill of Rights moribund. After all, the President would not take advantage of a poorly written law and deprive American citizens of their Constitutional rights. And even if he did, Congress or the judicial branch would surely step in to safeguard them if and when such abuses occurred. All I can say to that is that I wished I shared your optimism.

Speaking of the Executive, history is against those who believe that the leaders in such a position do not use all the powers granted to them by a plebiscite. The concentration of power the hands of a few has almost always (perhaps always, but I suppose there may be counterexamples) led to tyranny. But even if one discounts history (America is different, right?), just look at what has been happening over the last five years. Despite all the rhetoric about freedom, we have much less of it now than we did before September 11, 2001.

One final thought. Just because everything is in place necessary to deprive Americans of their Constitutional rights, we need not expect to see mass arrests of America citizens in the short term. Though the law gives the President such authority, he will probably not exercise it until there is some case (real or fabricated) where an alleged terrorist plot is foiled by the implementation of the provisions of this Act. After the hyped-up euphoria of this “success,” or after the next domestic terrorist event (again, real or fabricated), all bets are off.