Aliens or Citizens: Van Erp

Peter van Erp writes:

' From: Peter van Erp Sent: Thu 10/19/2006 11:14 AM To: Juan Cole Subject: Your lettre de cachet is coming...

Dear Professor Cole,

I just noted an error in your post yesterday regarding the Military Commissions Act of 2006.

The original version of the House bill (HR 6166) included a definition of Illegal Enemy Combatants as:

“(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.”

The original Senate Version (S 3930) as introduced applied only to aliens:

' “In this chapter:

`(1) ALIEN- The term `alien' means an individual who is not a citizen of the United States.

`(2) CLASSIFIED INFORMATION- The term `classified information' means the following:

`(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security.

`(B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

`(3) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means an individual who is--

`(A) a member of the regular forces of a State party engaged in hostilities against the United States;

`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

`(4) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.”

When the Senate version originally passed, the version published in Thomas as “Engrossed as Agreed to or Passed by Senate” ( http://thomas.loc.gov/) included that language. That has lead to most of the media stating, as you did, that the Military Commissions Act does not apply to American citizens.

In the past two weeks since the Senate passed S 3930, the published version has been changed to align with the House.

I can only speculate that the language in the published version of S 3930 was not changed immediately after passage in order to mislead the media. The other possibility is that the Senate passed the bill as originally written, and persons unknown changed the published version in order to avoid the need for a reconciliation vote where the import of the bill could be revisited. In any case, the various efforts of the ACLU and others to correct the public perception are lost in the general furor, and the media keep repeating that the bill only applies to them. We have met the enemy and he is us.

See you in Gitmo! I’ll be the un-named guy in the un-numbered cell. '

Peter Van Erp