Imagine Giving Rumsfeld Unbounded Discretion to Detain You Indefinitely

[katinmn]

Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely
http://balkin.blogspot.com/2006/09/imagine-giving-donald-rumsfeld.html

Marty Lederman

Yesterday I explained that the definition of "unlawful enemy combatant" (UEC) in the latest draft of the detainee bill was so ridiculously broad and open-ended that it could not possibly be intended to establish the authority of the Executive to militarily detain all persons so defined.

But it appears I underestimated the gall and recklessness of the Administration and Congress, because there seems to be a fairly widespread understanding that the definition would do just that. Even Human Rights First seems to agree that "unlawful enemy combatants" would be subject to indefinite detention.

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any "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)." And that subsection is, indeed, broad, and fairly indeterminate, depending on how "materially supported hostilities" is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any 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."

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