Well.

Sec 948c states: "Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter."

Terms are defined in section 948a:

948a.1: "The term 'alien' means an individual who is not a citizen of the United States."

948.a.3: "The term 'lawful enemy combatant' means an individual who is (a) a member of the regular forces of a State party engaged in hostilities against the United States; (b) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizeable at a distance, carry their arms openly, and abide by the law of war; or (c) a member of a regular armed force who professes allgeiance to a government engaged in such hostilities, but not recognized by the United States."

948.a.4: The term 'unlawful enemy combatant' means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.

I read those sentences together as saying that the people subject to these commissions are all non-Citizens who either engage in hostilities or "hav[e] supported hostilities."

Note that it says "support," not "material support." This is a pretty loose standard of membership or of hostile action.

Compare, for example, to 18 U.S.C. 2339B, the 1996 anti-terror act, which prohibits provision of "material support or resources" to an organization designated as a foreign terrorist organization. The omission of a modifying adjective here will very certainly be taken seriously by the courts to have been intentional.

Agreed with all of this. However, there are some serious deficiencies in this law:

(1) "Enemy combatants" is very loosely defined, since it suffices to simply "support" the enemy. Importantly, the word isn't given its usual qualifier "material," which means that the law specifically allows the use of this definition for much broader types of support than are traditionally considered. (Providing guns is material support; speaking in someone's favor is non-material support) This law seems to leave the decision on who is an enemy combatant in the hands of SECDEF, which is a damned scary (and unaccountable) place to leave it.

(2) There is no doubt that a procedure needs to exist for the handling of non-uniformed combatants. But this procedure explicitly restricts almost every procedural safeguard, not only of civil law, but of the UCMJ. (See particularly section 949a.2, and the fact that it's overridden by 949.a.b.1 whenever SECDEF so orders; and 948.b.c, which notes specific provisions of the UCMJ which are explicitly rejected by these commissions) Very concerningly, it permits indefinite detention of people without any trial or ability to challenge detention even in military court. (948.b.c.A)

This combination of factors seems like it disassembles the basic foundations of justice, or any semblance thereof. The first means that it's applicable not only to persons encountered on the battlefield, but to anybody whom the SECDEF (or his appointed agents) deems necessary; the second means that anyone so labeled has no effective defense or response. Neither of those are necessary for simply refining the existing procedures to deal with enemy agents captured on the battlefield.

I'm not going to make any slippery-slope arguments; from my reading of this document, this is the real thing, not a precursor.

First of all, as per my other comment: this bill is not limited, as far as I can tell, to foreigners on foreign soil; it seems to apply to non-US-Citizens wherever they may be.

The Amar case seems to be an indication of why this is so deeply a problem. Amar was captured in transit through the US, thus as a foreign citizen on US soil; but rather than being sent through an ordinary legal procedure, wherein it would likely have been discovered that the Canadian intelligence was deeply flawed, he was rendered over to Syria for interrogation.

I realize that this is not the specific case covered by the law here, since he was rendered rather than tried by a tribunal; but it illustrates the key point that these terrorism charges are not being given the sort of scrutiny that an ordinary legal charge would receive, even one of much less severity, as well as the fact that foreign nationals on US soil are being considered aliens in practice.

It seems to me that this bill establishes a de facto martial law with respect to all non-citizens. Do you see something in its text, or in the established legal climate, that contradicts this?

I don't see how you derive (2) from the text of this law. AFAICT it simply requires that you either engage in or support hostilities, and it chooses a term for support which is intentionally broader than the material support requirement of existing law.

If the law were indeed limited to actual combatants or effective combatants such as spies, that would be one thing. (Although that would bring up the question of how one proves that people actually are effective combatants, and who judges) But this law doesn't seem to do that.

I'm not certain that the bill says so, and I'm even less certain that it was meant to say so. (cf the other comment thread, about 948a.4 versus 948c) It seems to me that 948a.4 was trying to conform to international law, and 948c was trying to broaden the scope of the law pretty radically.

If there were such a restriction, I would be quite a bit less alarmed by the bill; it wouldn't be dismantling the Constitution in that case, at least. However, its total lack of safeguards would still be a pretty big issue: the Arar case only happened because there was no second set of eyes on the matter, and this law seems to formalize that lack of oversight pretty soundly.