There seems to be a new draft of the "compromise" bill on military tribunals and detention. I haven't read it through in its entirety. However, a few points:
First, it still strips alien enemy combatants of habeas rights. It also still contains this horrible provision:
"(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --
(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)"
That's the one that effectively removes our system of extraterritorial detention from judicial oversight.
Second, the Washington Post notes that the definition of 'unlawful enemy combatant' does not preclude US citizens from being designated as unlawful enemy combatants. This is not new: the previous version of the bill didn't rule that out either. Nor does this strike me as a bad thing: if a US citizen went off to fight with al Qaeda against the US, he or she would seem to me to be properly described as an unlawful enemy combatant (at least, if we leave aside questions about whether we should use that term at all.) Moreover, a lot of the provisions of the law specify that they apply only to alien unlawful enemy combatants.
The problem with the new definition isn't that it allows US citizens to be unlawful combatants; it's that it's both broad and (it seems to me) vague. It reads (copying from Balkinization, since the pdf doesn't allow copying):
"(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."
The 'purposefully and materially supported hostilities' part has, I think, two possible readings: (1) someone has purposefully done something in order to materially support hostilities against the US; and (2) someone has purposefully done something, and the government believes that that something materially supports hostilities against the US. To see the difference, consider this example:
"Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.
“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her."
On the first reading, the little old lady would not be an enemy combatant, since she did not know that her money would be sent to al Qaeda, and thus did not purposefully aid it. On the second, however, she would: she purposefully sent her money to the charity, and thus purposefully did something that, unbeknownst to her, materially supported hostilities against the US.
There's a big difference between the two readings.
We also need to know what, exactly, count as "hostilities". Marty Lederman points to a statement from yesterday's Judiciary Committee hearings that makes this clear. It's by Bradford Berenson, who describes himself as "Associate Counsel to President Bush from January, 2001 through January, 2003":
"We thus found ourselves after Rasul with hundreds of our nation’s most vicious enemies suing our military and civilian commanders in federal court seeking writs of habeas corpus. Indeed, now that Khalid Sheikh Mohammed, the al Qaeda mastermind of 9/11, has been transferred to Guantanamo, it may not be long before he, too, can continue his aggression against the United States, this time through our own court system."
So according to someone who was one of the administration's lawyers for two years, filing habeas corpus petitions counts as aggression against the US. By that standard, on either of the two readings, CharleyCarp and I, along with any of you who have taken material steps to secure habeas rights for detainees, are all enemy combatants.
Nice to know. I thought I was sticking up for my Constitution and its values, and doing what I took to be my patriotic duty. Silly me.
The point is not that I believe that this retired administration official's rhetorical excesses might actually be turned into explicit policy. The point is rather that I don't see much in the bill that would prevent that. It's terribly written and very confusing, and a lot of its worst effects are not obvious when you read it quickly. It's also 96 pages long. We should not so much as consider messing with our Constitutional rights by passing a bill written in haste, whose drafts are still being worked on even as we speak, with a little over three days left before the Congress goes into recess. There is no time to have anything like the kind of debate we need to have; there isn't even enough time to feel the slightest confidence that we understand what the bill does.
Even if this bill did not have the appalling habeas-stripping and case-blocking provisions I mentioned above, and even if I had absolutely no objections to its contents, I would still feel that it would be a horrible mistake to pass a bill dealing with such important issues in this slapdash way. Laws are complicated things, and it takes time to figure out what effect changes to them will have. The administration and Congressional leaders have had years to work out a bill that would address their concerns. Pulling one out of their collective hats at this late date is no way to amend basic constitutional rights. When they insist that "time is running out", we ought to reply: and whose fault is that, exactly?
In any case, though, the worst features of the old bill remain in place. In my opinion, it should still be filibustered.