Former White House lawyer Bradford Berenson says the new detainee bill is consistent with what courts have said about the president's right to imprison U.S. citizens as enemy combatants.
Michael Ratner, president of the Center for Constitutional Rights, says the legislation offers U.S. citizens little protection beyond the ability to challenge their appeal. Under the bill, he says, "This administration can simply pick up American citizens and hold them."
Learn more about the provisions in the detainee bill, which establishes military commissions to try detainees, touches upon detainee legal rights and clarifies U.S. policy on the Geneva Conventions, among other things:
The new detainee legislation passed by Congress this week addresses who can be detained as an unlawful enemy combatant and what rights enemy combatants are entitled to. And it could have an impact on the president's ability to declare that an American citizen is an enemy combatant.
In this politically charged atmosphere, competing perspectives on the topic emerge. Bradford Berenson, a White House lawyer during President Bush's first term, says the legislation is consistent with what courts have said about the president's right to imprison U.S. citizens as enemy combatants.
"U.S. citizens can be detained as enemy combatants if they take up arms on the side of al-Qaida," Berenson says. "But they get some extra judicial protections in that case."
Interpretation at the Discretion of the White House
The legislation that Congress passed does not say enemy combatants are people who "take up arms on the side of al-Qaida." The bill instead refers to people who provide "material support" to the enemy. The language of the bill says that is the standard for both citizens and non-citizens. But Berenson says that's not how the administration will apply it.
"As a practical matter, it would turn out to be a much higher standard for an American citizen," Berenson says. He says a "very demanding review" would need to take place within the executive branch before the president would sign an order declaring a U.S. citizen to be an enemy combatant.
"There's really no risk that a U.S. citizen who merely gives a charitable contribution, in error, to an organization that supports terrorism is going to find him or herself declared an enemy combatant," he says.
Yet this higher standard is not spelled out anywhere in the bill. Berenson acknowledges that what he describes is the White House's interpretation.
To Michael Ratner, president of the Center for Constitutional Rights, that sounds as if the administration is saying, "Trust us." And with a phrase as general as "material support," he's not comfortable doing that.
Ratner says the Bush administration has a history of broadly interpreting what constitutes material support. 'It certainly includes a very broad level of behavior, " Ratner says. "The real problem is, it's really up to the administration to define it, and that's pretty sad to me."
Legal Protections for Citizens vs. Non-Citizens
So far the courts have been vague on the topic of defining Americans as enemy combatants. The only explicit ruling the Supreme Court offered was in the case of Yasser Hamdi. The justices said an American detained on the battlefield in Afghanistan could be declared an enemy combatant, as long as he had an opportunity to challenge his detention.
The high court hasn't ruled yet on whether Americans picked up in the United States can be enemy combatants, and if so, under what standard. The new legislation spells that out. Fordham University law professor Catherine Powell says the court is more likely to defer to Congress than to a rule that comes straight from the White House.
"Going back to the Civil War, the Supreme Court has often felt more comfortable with actions that have the support of both the executive and legislative branch than those that just have the support of the executive branch," Powell says.
Americans held as enemy combatants have certain legal rights. They can challenge their detention, and if they're charged with war crimes, they get more rights at their trials than non-citizens.
By contrast, the legislation puts non-citizen enemy combatants in a very different situation. If they aren't charged with a war crime, they may never be brought to court at all.