One way that rights will be eroded by the bill is through a change in the meaning of the legal term "enemy combatant." Current Pentagon regulations describe an enemy combatant as anyone who "engages in acts" against the United States. The new legislation would broaden that to also include anyone who "has purposely and materially supported hostilities" against America. And to add a further note of confusion, elsewhere in the bill an enemy combatant is defined in circular fashion as anyone so designated by a new Defense Department entity, the Combatant Status Review Tribunal.
Defending this accordion-like definition on the Senate floor, South Carolina Republican Lindsey Graham -- one of the three Senate Republicans who negotiated with the White House -- said, "I am firmly in the camp that when it comes to determining who an enemy of the United States is -- who has taken up arms and presents a threat to the nation -- that is not something that judges have been trained to do, nor should they be doing. That is something our military should do."
Many of the provisions of the legislation are so new or so murkily drafted that legal experts and human-rights advocates have not reached a consensus about their implications. There is considerable debate, for example, about whether the bill's treatment of the Geneva Conventions would permit the CIA to continue such notorious interrogation techniques as waterboarding. There also remains some question whether it might be permissible under the bill to declare an American citizen an "enemy combatant," thereby stripping him of any access to the courts. Graham and other Republican senators stoutly denied this possibility during Wednesday's debate.
Evidently, according to the memo Graham got, the military decides. But at what level? Privates in the field? Generals? Rumsfeld? The Decider-in-Chief?
None of this is comforting to those of us stuck in that post-1215 mindset.