The "Enemy Combatant" Designation Really Means More Due Process, Not Less

The analysis in the following paper was written by Stewart Rhodes while at Yale Law School and was the winner of Yale's Judge William E. Miller Prize for best paper on the Bill of Rights. Rhodes is the founder of Oath Keepers, which, on Christmas day, announced its participation in a bi-partisan drive to recall all three of Montana's congressional delegations for "violation of the oath of office," by voting for the blatantly unconstitutional NDAA National Defense Authorization Act, which allows the indefinite military detention of American citizens without charge or trial. Violation of the oath is one of the five narrow and specific grounds on which a recall in MT may be initiated.

Montana is one of nine states with provisions that say that the right of recall extends to recalling members of its federal congressional delegation. MT allows only grounds of physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, or conviction of certain felony offenses.

Section 2 of Montana Code 2-16-603 reads:

"(2) A public officer holding an elective office may be recalled by the qualified electors entitled to vote for the elective officer's successor."

Ballotpedia.org cites eight other states which allow for the recall of elected federal officials: Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin.

In a nutshell, Rhodes' argument suggests that the American law profession, in academia and in practice, has been overlooking the most important clauses pertaining to the "American al-Qaeda" enemy combatant issue entirely. Rhodes notes that NDAA of 2012 directly violates the Treason Clause of Article III, Section 3, which defines the crime of treason, stating:

In the announcement of Oath Keepers' participation in the national recall drive, Rhodes writes:

"Thus Article III clearly establishes what must be done with any Americans accused of making war against the United States or aiding the enemy -- those Americans must be tried in an Article III civilian court, before a jury of their peers, and there must be two witnesses to the overt act or a confession in open court (extra evidentiary hurdles) before their lives or liberty can be taken from them, as Justices Scalia and Stevens aptly pointed out in their dissent in Hamdi."

The paper is "Solving the Puzzle of Enemy Combatant Status." This is an intellectual bombshell which should recharge the entire manner in which civil libertarians from the ACLU to conservative think tanks frame the whole issue of arresting American citizens as enemies of the state. It has lain buried in a vault at Yale where the original copies of all significant essays are kept in perpetuity, with all the potential of a Lutheran thesis in religion to turn the world of Constitutional interpretation of Americans' rights in time of war upside down.

Rhodes writes that the NDAA National Defense Authorization Act, which allows the indefinite military detention of U.S. citizens despite language which Rep. Justin Amash warned, was "carefully crafted to mislead the public,"

"... is but the latest in a long train of abuses begun by the Bush administration and carried forward by the Obama administration. The Bush administration began the assault on the Bill of Rights by using arbitrary military detention on two American citizens, Yaser Hamdi and Jose Padilla, with Padilla "captured" at the Chicago O'Hare International Airport and detained at a military brig in the United States for three and a half years.

The Bush Administration based those detentions on a flawed World War II decision, Ex Parte Quirin (1942), wherein the same Supreme Court that gave us the horrendous Korematsu decision, ruled for the first time in U.S. history, upheld as "constitutional," the military detention and trial of American citizens as "unlawful combatants" under the laws of war rather than a trial for treason, in a civilian court before a jury of their peers, as our Constitution demands whenever any American is accused of making war against the United States or aiding the enemy in wartime."

The deceptions in the language of the NDAA, intended to allow defenders to argue that the provisions do not apply to American citizens, center around Sections 1021 and 1022. Rep. Tom McClintock opposed the bill on the House floor saying it:

"specifically affirms that the President has the authority to deny due process to any American it charges with "substantially supporting al Qaeda, the Taliban or any "associated forces'" -- whatever that means. Would "substantial support" of an "associated force" mean linking a website to a website that links to a website affiliated with al-Qaeda? We don't know."

And Section 1022 (b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS states:

(1) UNITED STATES CITIZENS. -- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

However, although the section says it is not "required" that U.S. citizens be held in military detention, it is nevertheless "allowed." Of course what this mode of discussion misses entirely is the single most important point: all accusations rest solely on the word of the government, with no witnesses, evidence, or any other form of due process available when the government is either wrong or lying.

Rhodes, in his scholarly paper, argues vehemently that before World War II:

"the only other time a President had applied the laws of war to the American people was when Lincoln detained approximately 15,000 Northern civilians and tried nearly 5,000 of them by military tribunal. That detention and trial, under the laws of war, was ruled unconstitutional by the Supreme Court in Ex Parte Milligan (1866). Prior to that unconstitutional practice by Lincoln, all who were accused of making war against their own nation or aiding the enemy, received a trial for treason before a jury of their peers. And after Lincoln, such an attempt to use the laws of war on the American people was not attempted again until FDR did it during World War II. Nor was it attempted again until after 9/11.

It was then, in 2001, that the Bush administration used that nearly-forgotten World War II Quirin decision to support a claim of power to treat America like a battlefield and to apply the laws of war to the American people, treating U.S. citizens and lawful residents the same as the people of conquered enemy nations, such as Iraq and Afghanistan, where anyone merely accused of being an "enemy" can be detained indefinitely by the military or tried by tribunal and executed. And the modern federal courts have given their rubber stamp of approval, most significantly in the Hamdi and Padilla cases. And so, the flawed Quirin decision that laid around like a loaded gun for sixty years has been picked up, dusted off, and used to bring the laws of war home to America, shoving aside our Bill of Rights, and transforming America, step-by-step, into the equivalent of occupied Iraq."

The treason clause of the Constitution has been used in attempts to shield lawmakers who have violated their oaths of office to "protect and defend" the United States Constitution from charges of treason by arguing that "levying war" is many steps removed from attacks on rights, although it is not. What has been missed is that the clause has all along provided what the Constitution has always provided: layer upon layer of protections against rogue governments.