Barbecueing the Military Commissions Act in Texas

by Julian Ku

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.

6 Responses

  1. pardon me. but …

    Julian, you are very young, are you not?

    Under 30? Under 25?

    The MCA is one of maybe 20 initiatives of

    the Court of George II that were intended to

    effect a fascist, totalitarian state.

    So far it’s working.

  2. There are crimes subject to trial by a military commission, offenses against the laws of war, “war crimes”, and violations of international law. All four may be tried by a military commission, but they are four different things.

    Rape is an ordinary crime that would be tried by a Court Martial if commtted by a US soldier. When committed by an enemy soldier captured by the US, it can be tried as an ordinary crime by a Court Martial or military commission.

    Spying (technically crossing lines out of uniform) is an offense against the Laws of War, but one which may not be a crime and certainly is not a “war crime”. The most prominent example is Captain Nathan Hale (1776) who we regard as a hero, not a criminal.

    There are a few other violations of the laws of war that are more dishonorable. Violation of Parole (when a prisoner is released on his word of honor to not participate further in the war, but is subsequently captured in combat) would be another exclusively military offense typically subject to military trial and execution. (There are supposedly 20 al Qaeda prisoners who fall in this category, so we may expect some MCA activity on this type of charge). We have one case coming up of murder by an enemy dressed as a civilian. It will be an ordinary crime if he is regarded as a real civilian, but an offense against the laws of war if he was an enemy soldier pretending to be a civilian.

    War crime is a loosely defined term covering illegal forms of combat for which soldiers and their commanders can be tried, such as killing prisoners and hostages, using human shields, etc. War crimes are a violation of the laws of war, but unlike technical violations (spying) they are morally reprehensible and apply up the chain of command (you cannot try the commanding officer who ordered a spy to cross lines, but you can try one who ordered prisoners shot).

    Violations of international law may include things that are not related to laws of war. For example, on 9/11 a unit of al Qaeda hijacked four jet aircraft. They violated international laws concerning air piracy. Pirates traditionally are tried and hung by military commissions, but they are not regarded as combatants entitled to treatment under “laws of war”.

    Military commissons can try enemy prisoners who come within their jurisdiction (and frequently fall under no civilian justice jurisdiction). They may try ordinary crimes (rape, murder), offenses against the laws of war (spying, violation of Parole, engaging in combat out of uniform), war crimes (killing prisoners), or crimes under international law (piracy). The MCA assignes jursdiction for all four types of offenses, and all four types have traditionally been tried by military commissions.

  3. ‘MCA is one of maybe 20 initiatives of the Court of George II that were intended to effect a fascist, totalitarian state.’

    You may be a fan of monarchy, but you go to far by crediting KGII with such prescience in creating fascist totalitariansim.

    And it isn’t working very well since the Good King has been in his grave for over 200 years is it?

    Julian may be younger than you Joel, but I feel confident that he knows more stuff than you, is brighter than you and has girl friends.

  4. It is a myth that the UCMJ establishes jurisdiction for charging “prisoners who come” within US jurisdiction with the enumerated offenses of the code. That jurisdiction only attaches once the individual is a prisoner, and therefore those offenses are not applicable to pre-capture offenses. Whether a military commission can properly be granted jurisdiction over such non law of war offenses outside the context of belligerent occupation is certainly not a settled question. One thing is, however, certain – when the UCMJ (and prior Articles of War) was drafted, the jurisdiction for PRE CAPTURE offenses committed by enemy personnel was limited to violations of the laws of war (through Article 18), and spying (the only “enumerated” offense subject to trial by BOTH courts-martial and military commission). If it was well accepted that enemy personnel who come within the jurisdiction of a military commission are subject to trial for non law of war related offenses (and on the question of “what is a law of war violation” I think Julian’s observation is excellent and may ultimately prove decisive), why were these offenses – which are all enumerated in the code – not also made subject to the concurrent jurisdiction of the court-martial? It seems to me the answer is that it has always been understood that the jurisdiction of a military tribunal for PRE CAPTURE misconduct is restricted to that derived from the proscriptions of international law – either war crimes, or other offenss committed during belligerent occupation.

  5. Because an enemy solider has combatant immunity, this necessarily means that he can only be tried for violations of the laws of war with regard to combat. However, if he has committed an act that would have been criminal for a US soldier(example: rape) then the US as the detaining force can try and sentence him as it would one of its own soldiers charged with the same crime. In this case the US is standing in for the enemy soldier’s own chain of command which would (should) have tried him for the same offense had he not been captured.

    A local civilian kills another civilian. During occupation this can be tried by military commission if there are no other functioning local courts.

    A civilian kills a US soldier. This is tried by military commisson under all circumstances even though the civilian was not a combatant and therefore was not subject to the laws of war.

    A pirate is captured. He is a civilian (or at least not recognized as a soldier) and is subject to military trial under international law though not necessarily the laws of war.

    A civilian provides material support to a terrorist organization. In the statute, the US asserts extraterritorial jurisdiction over this crime and will try the criminal if he subsequently comes within the jurisdiction of a US court. If he remains outside civilian court jurisdiction, the MCA assigns authority to try him in a military court. This is the most interesting case an asks if he can plausibly be said to fall under military, international (piracy), or US domestic (applied extraterritorially) law.

    So I think there may be a basis to criticize MCA assignment of jurisdiction, but I think you have to do it case by case and charge by charge. The rules are more complicated than trying to apply a single criteria. I suspect we will all be educated on this topic as the military commissions proceed. The JAGs are the ones most interested in making sure all the rules are followed.

  6. I do not believe this is accurate based on the plain text of the UCMJ. The enumerated offenses of the code are made applicable to individuals through the jurisdictional conduit of Article 2, “Persons Subject to this Code.” Those “persons” include members of the armed forces, cadets and midshipmen, and others. The only “enemy” personnel included in this category are Prisoners of War. Accordingly, these proscriptions (federal criminal prohibitions established by Congress) become applicable to “enemy” personnel only after they fall into US captivity. There is no jurisdiction based on the US acting as there “stand in” chain of command until they are in our custody. This concept of post capture jurisdiction is also consistent with both the GPW and AP I.

    Congress has extended US criminal law extraterritorially, particularly with regard to terrorist offenses. The MCA, however, makes such offenses subject to trial by military commission, even though they are not historically linked to the jurisdiction of such tribunals. The fact that similar offenses may be prohibited by the punitive articles of the UCMJ provides no alternate basis to support this jurisdiction, and in fact infers it is historically unprecedented. Those offenses are simply not applicable to enemy personnel for pre-capture conduct.

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