A White House Plan to Erode Our Liberties

Early this week, judge advocates halted two prosecutions in the Guantánamo military commissions established under the 2006 Military Commissions Act (MCA). This is not the first setback the Administration's second - tier court system has hit; the Supreme Court invalidated an earlier iteration of the commissions in 2006. And it won't be the last. But while this week's setback likely will be speedily surmounted, it casts an unexpected light on the MCA's real purposes, and what's at stake when the Bush Administration plays politics with national security.

Understanding the significance of this week's ruling means delving into a bit of procedural arcana. The devil in the MCA is, almost literally, in the details -- and unless we attend closely to the rococo details of the statute, we'll miss the ways in which the Administration intends to slowly erode our liberties.

At the beginning of this week, the military commissions' two judges -- Army Col. Peter Brownback and Navy Capt. Keith Allred -- dismissed charges filed against Omar Khadr and Salim Hamdan. The rulings focused on a question of categorization -- basically, the judges found that Khadr and Hamdan had been wrongly classified. But how did this happen?

The MCA, which created the military commissions, states that only an alien who is an "unlawful enemy combatant" can be tried in a military commission. It also defines "unlawful enemy combatants" in tremendously sweeping terms to include anyone who has "materially supported hostilities." Many civil libertarians, including myself, expressed grave concerns about the scope of this provision. Read in tandem with recent Supreme Court cases, it might be taken not merely as a gateway to trial by military commission but also as a sweeping new executive detention authority.

The MCA doesn't say how a person gets designated as an "unlawful enemy combatant." But all except one of the detainees at Guantánamo have already all been classified as enemy combatants by a procedure known as a CSRT, or Combatant Status Review Tribunal. (The one exception is a prisoner recently transferred to the base.) CSRTs are shoddy summary procedures in which the detainee has barely a role and cannot respond to the secret evidence used to detain him.

Problems arose this week not because of the flaws in the CSRT procedures but because the definition of "enemy combatant" that the CSRT uses isn't the same as the definition of "unlawful enemy combatant" in the MCA. Judges Brownback and Allred focused on this divergence and basically told the military that it couldn't fit a square peg in a round hole: A person designated by a CSRT as an "enemy combatant" isn't an MCA-compliant "unlawful enemy combatant."

Nevertheless, Hamdan and Khadr likely qualify as "unlawful enemy combatants" under the MCA's absurdly sweeping definition. So the likely next step will be a do-over. (And a do-over appears easy: The MCA allows a CSRT or "another competent tribunal" to do the designation.) This stumble for the commissions, in short, is unlikely to turn into a fall.

At one level, this is just another story of Bush Administration incompetence: No one looked at the Pentagon's rules when they were drafting the MCA. Today, we find out there's a technical mismatch. Just another screw - up, right?

Well, no. It's more than just peculiar: The MCA was enacted to allow the military commissions to go forward. And yet the provision that couples the detention system and the new military commissions wasn't carefully drafted.

But this is simply implausible in this situation. A tremendous amount of care went into the drafting the MCA, as one glance at its elaborate provisions shows. A great deal of care, for example, went into giving government torturers and their bosses retroactive immunity -- including through the specification of the precise month and day that the immunity would kick in. In a statute drafted with tremendous care -- and word - by - word White House editing, I do not doubt -- the disparity is not just evidence of familiar incompetence: It is evidence of something far more troubling.