However, as we have already witnessed, US Citizens can be picked up as enemy combatants and held indefinitely without recourse, and be subjected to what is arguably torture (see Jose Padilla for further reference. The U.S. administration has in the past described him as an illegal enemy combatant, arguing that he was thereby not entitled to the normal protection of US law, nor protection under the Geneva Convention.)
The real question is will this provision be upheld? isn't the MCA itself a signing into law a series of practices that were previously used and currently used that were against the standing law of the land and the Geneva Conventions? is this a hind-sighted justification of flouting the law?
Certainly, if the provisions in this act were carried out with a foreign national who belonged to one of the other signatory nations to the Geneva Conventions...some of the MCA sanctioned activities and suspension of rights would still be considered illegal.
here is some quoted text from Steve's source on the wiki encyclopedia that is listed under Criticism:
A number of legal scholars and Congressional members - including Senate Judiciary Committee Chairman Arlen Specter (R-PA) - have said that the habeas provision of the Act violates a clause of the Constitution that says the right to challenge detention "shall not be suspended" except in cases of "rebellion or invasion."[17]
The Act has also been denounced by critics who assert that its wording makes possible the permanent detention and torture (as defined by the Geneva Conventions) of anyone - including American citizens - based solely on the decision of the President.[18] Indeed, the wording of section 948b[19] of the act appears to explicitly contradict the Third Geneva Convention of which the United States is currently a signatory, however as long as the Act is not used when dealing with a country or countries that have also signed the conventions, the Geneva Conventions do not hold any weight.
In the House debate, Representative David Wu of Oregon offered this scenario:
Let us say that my wife, who is here in the gallery with us tonight, a sixth generation Oregonian, is walking by the friendly, local military base and is picked up as an unlawful enemy combatant. What is her recourse? She says, I am a U.S. citizen. That is a jurisdictional fact under this statute, and she will not have recourse to the courts? She can take it to Donald Rumsfeld, but she cannot take it across the street to an article 3 court.[20]
One has described the Act as "the legalization of the José Padilla treatment" - referring to the American citizen who was declared an unlawful enemy combatant and then imprisoned for three years before finally being charged with a lesser crime than was originally alleged.[21] A legal brief filed on Padilla's behalf alleges that during this time he was subjected to sensory deprivation, sleep deprivation, and enforced stress positions.[22]
Amnesty International said that the Act "contravenes human rights principles."[23] An editorial in The New York Times described the Act as "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts."[24]
American Civil Liberties Union Executive Director Anthony D. Romero said, "The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions." [25]
The law has also been criticized for allegedly giving a retroactive, nine-year immunity to U.S. officials who authorized, ordered, or committed potential acts of abuse on detainees.
