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The detainee legislation that Congress just passed deals with who can be detained as an unlawful enemy combatant and what rights enemy combatants are entitled to. NPR's Ari Shapiro reports on the impact the law could have on the president's ability to declare American citizens enemy combatants.
ARI SHAPIRO: Bradford Berenson was White House lawyer during President Bush's first term. He says this legislation is consistent with what courts have said about the president's right to imprison U.S. citizens as enemy combatants.
BRADFORD BERENSON: U.S. citizens can be detained as enemy combatants if they take up arms on the side of al-Qaida, but they get some extra judicial protections in that case.
SHAPIRO: 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's the standard for both citizens and non-citizens. But Berenson says that's not how the administration will apply it.
BERENSON: I think as a practical matter it would turn out to be a much higher standard for an American citizen. There is a rigorous and very demanding process of internal review inside the executive branch before the president will sign an order declaring a U.S. citizen 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.
SHAPIRO: At the end of the day, Berenson acknowledges that the higher standard for American citizens is the White House's interpretation. It's not spelled out anywhere.
To Michael Ratner, president of the Center for Constitutional Rights, that sounds like the administration is saying trust us. And with a phrase as general as material support, he's not comfortable doing that.
MICHAEL RATNER: Giving people advice on the Geneva Conventions, any kind of services, any kind of even legal services, we at the Center representing people, and this administration has usually very broad interpretations of that and therefore it's really what the president says. If he says you're giving material support, he can label you an enemy combatant and then you're in prison.
SHAPIRO: Are you saying that you are concerned that your attorneys, by providing legal advice to terror suspects, could be dubbed as enemy combatants because they're giving material support to terrorists?
RATNER: Well, I don't think we're doing that, of course not. I mean we don't support terrorism in any way. But this administration has taken a very broad view of material support. And of course, do I really think that I'm in jeopardy for this? I would hope not. But it certainly includes a very broad level of behavior, and the real problem is it's really up to the administration to define it and that's pretty sad to me.
SHAPIRO: So far the courts have been vague about what's allowed. The only explicit ruling the Supreme Court offered on Americans as enemy combatants was in the case of Yasser Hamdi. There, 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 U.S. can be enemy combatants and under what standard.
Now the legislation spells that out. Fordham law professor Catherine Powell says the court is more likely to defer to this rule than one that comes straight from the White House.
CATHERINE POWELL: 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.
SHAPIRO: 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. This legislation puts noncitizen 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.
Ari Shapiro, NPR News, Washington.
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