Last week, the U.S. House of Representatives passed H.R. 6166, the Military Commissions Act of 2006. A poster at Boing Boing earlier today linked to an article claiming that the bill does a number of things that it does not, in fact, do. While the legislation contains a number of questionable provisions, as one Boing Boing reader noted, "[I]f we start fighting it with false and misrepresented claims about its provisions, we'll look stupid from the start, and our arguments will just be dismissed an non-applicable."

What does this thing do?

By and large, it amends Chapter 47 of Title 10, U.S.C., known as the Uniform Code of Military Justice (UCMJ). These are the laws under which the military governs itself and tries its accused criminals. H.R. 6166 would create a subchapter, Chapter 47A, governing the military trials of suspected terrorists.

Immediately, the legislation defines an "unlawful enemy combatant" to potentially include even U.S. citizens. U.S. citizens accused of terrorist could be summarily stripped of their Constitutional rights and tried as though they did not have Constitutional guarantees (which they still would).

If H.R. 6166 defines "unlawful enemy combatant," then what is a "lawful enemy combatant"? It's any member of any state-organized armed force. Apparently, it's now illegal for civilians to engage in combat. By refusing to recognize terrorists as engaging in war per se, the Bush administration can avoid some of the nasty requirements of the Geneva Conventions of 1949.

What rights, then, does an "unlawful enemy combatant" have under the Geneva Conventions? Apparently, none. Under § 949b(2)(g), "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." Oops. Because the Geneva Conventions were for armies, not civilians, so it looks like you're out of luck.

H.R. 6166 also makes the president the authority on interpreting international treaties:

As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

Huh? He has Constitutional authority to "intrepret the meaning and application" of treaties now? Apparently, this is culled from the sentence in the Constitution in Art. II, § 2 that gives the president the authority "to make treaties." But, as with the line-item veto, this is a dicey area. The president's line-item veto authority is nill, since the Constitution specifies that he may either "sign it" into law or "return it" to the house it came from. So, too, does the president lack the authority to do anything but "make" treaties. Sure, he can enter into treaties -- with the advice and consent of the Senate, of course -- but after that, does he have the authority to interpret them? A treaty approved by the president and the Senate becomes the law of the land, on par with the Constitution in terms of weight. And only one group of people is qualified to interpret the Constitution.

But what about the allegations from prisonplanet.com's Alex Jones and Paul Joseph Watson (which is the Boing Boing link I spoke of)? The article mentions all of the criticisms I leveled above. Then it introduces new ones that aren't so true. "[T]he bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court," the authors say, referring specifically to § 950j.

H.R. 6166 does no such thing. While it does shut out future detainees from ever filing habeas suits again, it does not "criminalize" challenges to the legislation. To "criminalize" would mean "to render illegal" and thus permit the arrest of someone who might be trying to challenge the legislation in court. § 950j merely spells out that no court -- including the Supreme Court -- has jurisdiction to hear complaints about the legality of the legislation or the resulting findings of the military courts (except as provided later in the chapter; the legislation does permit suspects to appeal their cases to appellate tribunals, as well as the Supreme Court). If any court received a complaint about this legislation, men in black vans wouldn't arrest the petitioner; they would throw the case out due to a lack of jurisdiction.

"A change of the definition of 'pillaging' which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants"? Not so much. Read the beginning of § 950v(b)(5): the provisions of this legislation don't apply to any old person, only to "[a]ny person subject to this chapter." Regular Joe Squatter hanging out in the park or an abandoned building is not subject to a military tribunal; neither are "petty thieves." This law would have to go much further in order to create a military police state.

Questioning § 950v(26), Watson & Jones ask, "For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place?" The section -- which criminalizes "knowingly[ly] and intentionally aid[ing] an enemy of the United States," applies -- again -- only to "[a]ny person subject to this chapter." It is also clearly designed to allow prosecution of defecting military or federal government officials under this chapter. This means that if a Defense Department employee -- who did have to take an oath of allegiance upon getting the job -- gives al-Qaeda top-secret information, he may be prosecuted as an "unlawful enemy combatant" under this section.

This legislation is a bad idea, but it's not a bad idea for reasons that Watson & Jones claim it is, and it is alarmist and disingenuous to criticize particular parts of this bill that, in fact, have no problems. Thankfully, though, the authors do get to the worst parts of the bill. Imagine if Bill O'Reilly or Sean Hannity got hold of this article? This would it up as a model for all anti-war, anti-Unitary Executive arguments.