Barbecueing the Military Commissions Act in Texas

This past week, the editors of the Texas International Law Journal hosted a conference on the always controversial Military Commissions Act of 2006. The conference was a bit predictable in that it was full of law professors and advocates criticizing the MCA. But at least their criticisms were knowledgeable and interesting. (Links to webcasts of the conference, which included blogosphere stars like Marty Lederman and Sandy Levinson, can be found below after the jump).

I also spoke at the conference, and (as our regular readers might imagine), I did not spend my time criticizing the MCA. Indeed, the conference’s erudite discussion actually confirmed my initial impression that all the grumbling about the MCA is somewhat overblown. Here are my tentative conclusions after the conference.

(1) The MCA does not, as some of its critics claim, delegate to the President a broad unreviewable authority to designate and detain someone an enemy combatant. Rather, it merely gives the President broad authority to designate someone triable by military commissions.

(2) The MCA’s limitations on judicial review aren’t as stringent as they seem. The appellate review procedures created by the MCA are broader than they sound, and probably no more restrictive than federal courts reviewing state court criminal convictions in their capacity as habeas courts.

(3) The MCA’s codification of crimes against the law of war (and therefore subject to military commission trial) is somewhat problematic, but not nearly as problematic as many folks seem to think. Under the MCA, Congress has defined crimes such as “rape,” “terrorism”, and “material support to terrorism” as war crimes. These are not traditional violations of the laws of war, but they don’t seem all that far-fetched (at least to me). If Congress can define “spying” as a war crime, than it doesn’t seem crazy to think it could define “terrorism” as a war crime.

(4) The critics of the MCA and the Administration did make a very powerful case, however, that the U.S. government’s resort to the law of war in justifying its detention, interrogation, and punishment of terrorists isn’t quite right. The traditional law of war doesn’t really justify detention and especially interrogation of terrorists. But without the use of military force and the creation of an armed conflict, it is hard to imagine how the U.S. would be able to aggressively respond and prevent attacks like September 11, especially if it is subject to standard rules of criminal law and procedure, not to mention standard rules of international human rights law.

In any event, the conference really made me think, which is always a good thing. For those of you interested in viewing portions of the conference, follow the jump.