A Quick Review of HR 6166

(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.

Can a United States person be labeled as an 'Unlawful Enemy Combatant'? I would have to say 'Yes' because there is no exclusionary clause included in the language that specifically seperates U.S. persons from the rest.

§ 948b. Military commissions generally

(a) PURPOSE.--This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

An 'alien' is defined in this bill as 'a person who is not a citizen of the United States.' From the preceding definitions and this terminology, we can deduce that there are two classes of 'unlawful enemy combatants,' i.e. 'aliens' and everyone else. Presumably, we must include in that second category all United States persons who have been found to be 'unlawful enemy combatants.' Does this established military commission cover non-alien enemy combatants? On it's face, I'd say 'No.' But, let's continue.

(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

§ 948c. Persons subject to military commissions

Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

§ 948d. Jurisdiction of military commissions

(a) JURISDICTION.--A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

Again, more language dealing strictly with the class of 'unlawful enemy combatants' known as 'alien,' but doesn't mention the other class of 'unlawful enemy combatants'.

(b) LAWFUL ENEMY COMBATANTS.--Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.

Here we see that 'lawful enemy combatants' are excluded from the military commission's jurisdiction.

(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Bad news, boys and girls. This is where I think the bill tries to include your plain ol' vanilla 'unlawful enemy combatants' in with your 'alien unlawful enemy combatants.' Don't see it? Read it again. This time note the word 'dispositive.' They're saying, 'If a person is found to be an 'unlawful enemy combatant' by a Combatant Status Review Tribunal (whatever that is), then that person is 'transferred' under or 'related to' the jurisdiction of military commissions."

My assessment of this bill: It's crap and anyone who voted for it should be thrown out of office... or the nearest window, whichever one being the closest.

Military Commissions Act of 2006 (pdf)

Update: I ran across this article by Benjamin Davis of the University of Toledo College of Law at the Jurist web site. In his piece, he parses this bill much the same as I. When he got to § 948d(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE, he came to almost the same conclusion. His comment on this section was:

This provision anchors the jurisdiction of the military commissions in determinations for which there is little or no review. Once considered an unlawful enemy combatant, one is truly alone and made to have limited recourse before the end of the proceeding. And the powers of the Secretary of Defense are enhanced as the punishments are no longer to be determined by the President in Section (d) on that same page 8.