09 May The ACLU Needs to Dial Down the Rhetoric!
I rarely have reason to criticize the ACLU, so I feel obligated to respond to Anthony Romero’s statement concerning the possibility that Obama’s revamped military commissions would continue to admit hearsay under certain circumstances:
Romero said allowing hearsay in any U.S. courtroom [would be] a “greater travesty than Bush administration justice.”
I doubt that any amount of revamping would fix the basic defects of the military commissions, such as their jurisdiction over offences that do not actually violate the laws of war (conspiracy and material support for terrorism foremost among them). And I am skeptical that the revamped commissions would contain sufficient procedural safeguards to justify admitting hearsay, such as requiring all of the finders of fact to be professional judges. That said, it is simply ridiculous to claim that the very idea of admitting hearsay is worse than the endless list of judicial atrocities brought to us courtesy of the Bush administration — the Military Commissions Act itself foremost among them. Hearsay has been admitted at every international tribunal since Nuremberg, without calamitous results. And it is difficult to argue that the admissibility of hearsay in civil-law systems means that defendants in the vast majority of the world’s countries routinely receive unfair trials.
I applaud the ACLU for taking a stand against reviving the military commissions. And I hope that revamped military commissions would not admit hearsay, because I certainly don’t trust the Obama administration to make the procedural reforms necessary to ensure that it is admitted fairly. But overheated rhetoric like Romero’s does more harm than good.
The real problem here is that the “military commissions” are simply illegal under US law: 18 USC 2441(c)(2) makes it an offense to commit any violation of the Hague IV (1907) Annex of Regulations (“HR”), arts. 23, 25, 27, or 28. HR art. 23[h] provides: “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” The new commissions cannot be rehabilitated for the simple reason that any procedural variance from preexisting standards of due process isin fact a war crimes under 18 USC 2441. Further, there are two perfectly good legal swystems available to try any actual crimes the detainees may have committed: either the Article III Courts or the Military Justice System. Adopting these ad hoc abominations only insure that there will be endless litigation of every little procedural detail, followed by endless appeals to the real courts by whichever side loses. It is utterly silly and craven to even consider salvaging these atrocious and criminal “military commissions”, and it will only continue the disgraceful sham we’ve witnessed over the last… Read more »
Oh Charles,
Once again, your quoted language does not mean what you think it does.
HR art. 23[h] provides: “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
You then say, “The new commissions cannot be rehabilitated for the simple reason that any procedural variance from preexisting standards of due process is [in] fact a war crimes under 18 USC 2441.”
Charles, your argument does not follow from art. 23 because art. 23 does not tell you what rights the “nationals of the hostile party have.” Art. 23 states “rights” without explaining what “rights” those are. You have to look to other law for that.
I doubt you will understand this point just as you previously were unable to understand that early 20th century treaties recognized the importance of reciprocity. But hey, you can always accuse me of advocating for rape, murder, or cannibalism.
Kevin, There is definitely support for the ACLU statement in U.S. law. It is a mistake to focus solely on a comparative law or international law analysis. The fourth ex post facto violation articulated by the Supreme Court in Calder v. Bull is “4th Every law that alters the legal rules of evidence and receives less, or different, testimony than the law required at the time of the commission of the offence, in order to convict the offender.” (emphasis added) For me, the key to answering this question is whether the evidentiary rules ultimately adopted for military commissions are within the law controlling the evidentiary rules at the time the alleged crimes occurred. That law was Article 36 of the UCMJ, the same law at issue in Hamdan v. Rumsfeld. Article 36(b) required that the rules at courts-martial and other military tribunals be uniform insofar as practicable (the MCA amended this provision to except its commissions from it, an apparent facial violation of Calder but only if of any actual substance). It is possible to argue that the the altered evidentiary rules of the Military Commissions Act, however they are ultimately implemented, are a congressional determination of practicability and are thereby within the scope of Article 36(b) at the time of the alleged offenses. It is… Read more »
HLS,
What it means is that it is a war crime to deprive them of ANY right or action to which they are entitled by ANY applicable law.
And I guarantee you that I understand which laws are applicable in this case a LOT better than you do. They include:
Hague IV 1907
IMT Charter (London 1945)
Geneva 1949
ICAT
Title 10, U.S.C.
Title 18, U.S.C.
Then there is the Constitution itself, including the 5th amendment among so many other things that prohibit these outrageous kangaroo courts.
And just in case you’ve forgotten or didn’t bother to notice, Judge Green got the 5th amendment exactly right in In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005)… A decision that has held up pretty well through Boumediene.
I’ll bet you don’t even know what DOJ’s excuse for ignoring 18 USC 2441(c)(2) is — but I do. Let’s see you figure it out for yourself. Let me know when you’re ready to give up and I’ll clue you in.
Now get real. PLEASE.
I don’t think it’s defensible to argue ANY procedural variance from established civilian due process is a violation of 18 USC 2441 and the Hague Convention. I don’t disagree that the previous iterations of military commissions had some serious, if not fatal, flaws, but that’s far short of saying a judicial proceeding under different rules of evidence or with altered procedures would be a war crime under the Convention seems to stretch it. Given the title of Article 23 (Means of Injuring the Enemy, Sieges and Bombardments), it seems much more likely the intent was ensure countries could not close their courts entirely to nationals of a hostile power, or nationalize and seize their property wholesale, solely because of their national origin. The same subpart quoted includes a prohibition on forcing nationals of a hostile power to fight against their home country. For the sake of argument, though, and any deviation from preestablished standards of due process would be a war crime, what standard of due process do we use? Due process is very different between civilian federal district court and during a military court-martial, and both are different from, say, the evidentiary and procedural rules used by the ICTY… Read more »
Charles,
And now you are changing your argument.
Your original argument regarding, “any procedural variance from preexisting standards of due process” is different from “ANY right or action to which they are entitled by ANY applicable law.” So, no, they don’t mean the same thing
You do cite some positive law that provides classes of individuals with particular rights. But, those laws don’t equate to due process.
Regarding the Fifth Amendment, as a matter of course, I wouldn’t rely on a federal district court opinion. In addition, assuming 5th Amendment due process applies to detainees that fact does not mean detainees are entitled to the exact same due process as US civilians are entitled to.
All your citation to art. 23(h) does is say that it is illegal to not provide detainees the rights that they are entitled to. Is does nothing to advance your argument regarding the content of their rights.
All, I should add to what I said above that the simplest response to the ACLU statement is that while it may be true, it is probably irrelevant. The Supreme Court has repeatedly held that military commissions and other tribunals are not “courts” in the sense of Article III of the Constitution. (See Quirin, Yamashita, and Jecker v. Montgomery.) Of course, one could view the MCA as Congress creating a tribunal inferior to the Supreme Court and therefore a new brand of Article I adjunct to Article III courts. This conclusion is not required, however, as prior statutes recognizing the jurisdiction of military commissions (Art. 15 of the Articles of War, later adopted as Art. 21 of the UCMJ) have, in the past, been viewed by the Court as (at most) an exercise of the define and punish (offenses against the law of nations) power. It may be a travesty for any court or tribunal in the U.S. to admit hearsay, particularly if the circumstances under which the extrajudicial statement was made involved coercion – rendering it presumptively unreliable. The problem with the MCA provision on this point is that the party opposing admission must demonstrate the statement is unreliable (10 U.S.C. 949a(b)(2)(E)(ii)). This… Read more »
Reposting without links to avoid the moderation… Peter and HLS, I’m sorry, but the text of HR art. 23[h] is absolutely unambiguous, and the title of the section is utterly irrelevant to the fact that the standard was incorporated into 18 USC 2441 by the Expanded War Crimes Act of 1997 as an expression of customary law; see the legislative history HERE. Note that the US statute incorporates only HR arts. 23, 25, 27, and 28; it does not incorporate HR arts 1 or 2, nor does it incorporate Hague IV 1907 itself. It simply says that ANY violation of those four articles is a war crime, period. The text is plain to anyone who actually bothers to read it. Here, the case could not be more clear: the Bush administration spent seven and a half years arguing that these detainees have absolutely no rights or legal recourse whatever, and the military commissions were plainly intended to prevent them from ever seeing a legitimate military or civil court. You can fabricate all the phony excuses you want, but the military commissions displayed criminal intent from the start, and have functioned as a criminal enterprise ever since. It isn’t even remotely… Read more »
I must confess to a Scalia-like mistrust of legislative history in determining the meaning of a statute. This is particularly the case when the WCA provision regarding the Geneva Conventions punishes grave breaches of those conventions “or any protocol to such convention to which the United States is a party“. There seems to be little logic in requiring the U.S. to be a party to a protocol as a condition to punishment if its terms are incorporated as customary international law. The HR reference in the WCA is more generously worded and does admit of the broader reading that Charles suggests is supported by the legislative history. One last thought though. Why wouldn’t the later-in-time Military Commissions Act supersede the WCA? In other words, when there is an irreconcilable conflict between laws passed by the same legislative body, the later-in-time usually provides the rule of decision for the courts. Additionally, later-in-time domestic legislation prevails over prior, inconsistent international obligations in U.S. law. Even if Charles is correct that some of the MCA constitutes a war crime under customary international law (only if actually implemented), that does not mean it is the case as a matter of U.S. domestic law. I note here that Congress excepted MCA… Read more »
*sigh*
One of my law professors once told my class, “Whenever a judge or lawyer says something is ‘clearly’ or ‘plainly’, it isn’t.” My guess is he would have a similar low opinion of the value of capital letters as a persuasive tool.
I don’t feel I’m being dismissive or contemptuous of our system of laws, nor defaming the courts by suggesting (rather politely, I thought) that the existing flaws in the military commissions as constituted did not rise to the level of a war crime under 18 USC 2441. Perhaps we should take a cue from the original poster’s point that “overblown rhetoric… does more harm than good.”
Peter and John, one simple sentence from Charles Gittings’s bio provides all the context one needs for his remarks.
And I quote from Charles’s website, “On 9/11/2001, it was immediately obvious to me the world was facing a crisis on the order of 1914 or 1939, and that the greatest danger by far was the Bush administration.”
I’ll let that sentence speak for itself.
Can somebody please explain something to me. Whether the U.S. allows hearsay or not is a relatively minor matter. I say minor as a point of reference in comparison to the massive human rights violations committed by Russia in Chechnya. However, this post has generated 12 comments while the post on Russia by Professor Borgen generated one.
I have gone back and forth with many of you as to whether you have some anti-American bias. I don’t want to re-argue those points. But this does show that many of you are far, far too America focused. There is a big, bright world of gross human rights violations, go out and explore it.
NSD,
This is a blog about IL and, naturally, largely populated with leftists. Criticizing America (oh, and must not forget Israel) is their raison d’être.
Why criticize countries that really do horrible stuff, and, you know, imprison or kill their critics?
America’s new slogan, pace NSD and HLS: “America, Not As Bad As Everyone Else!” Maybe we should put that on our currency.
Professor Heller
Decent zinger, nice with the currency, made me smirk.
But, doesn’t answer the question, why 14 posts on hearsay in military commissions and 1 post on Russian actions in Chechnya?
This may just be me, but if I had to choose how to spend my valuable time, I would try to get that whole Russian thing worked out, because it seems that would, you know, reduce a lot of human suffering. Hearsay in U.S. military commissions … important but I would trade that to end all the horribles outlined by Professor Borgen.
Again, I invite you to put on your “Prof.” hat and let me know what I am missing.
NSD,
Perhaps the volume this post generated reflects the importance of the U.S. setting a global example regarding the rule of law. Talk to almost anyone who has done field work with the International Committee of the Red Cross and they will tell you that it matters. The farthest reaches of the world remain acutely aware of what we do. Beyond that, my comments relate to the fact that the domestic incorporation of IHL is where I spend a great deal of time in my scholarship.
I can assure both you and HLS that I am not anti-American in any way, nor am I leftist. America’s doing the “right thing” is very important to me given that I have spent almost 23 years of my life in service to her (though I here feel the urge to once again say that my views to not reflect the views of the U.S. government or any department or agency thereof).
HLS,
HA — all that tells us is that I had a lot better understanding of reality back in 2001 than you do right now.
Did you figure out an excuse for art 23[h] yet?
Did you even try?
Well don’t strain yourself, I’m about to discuss it with John.
TNSD, the issue is very unlikely to be one of bad faith or anti-Americanism. This is a reasonably common phenonemon in fact. It can be seen when some of the most heated debates on Kos are about whether a given Democrat is a ‘real’ Democrat or a sell-out, for example. It is common because there is not that much to say when everyone is in varying shades of agreement, it is only disagreement that calls us to express ourselves (although on a site such as Kos’, people are often in furious agreement as to eg how bad Bush is – this blog may have slighlty more measured commenters, with one notable exception). In the immediate context, most people here (not I) are not only measured people but ILers – what can they meaningfully add on Chechnya except to agree how bad it is? Russia doesn’t care about the application of IL and nor do the Chechens and nor does any party even remotely likely to be in a position to do anything. IL is largely irrelevant in Chechnya, except as witness and maybe a yardstick of sorts. And obviously very different circumstances exist here in a country of laws and… Read more »
John,
I have no quarrel with you. My ire is directed at others.
Charles,
You are simply beyond the pale. That on 9-11, the day that terrorists struck, it was obvious to you that “that the greatest danger by far was the Bush administration.”
It wasn’t the planes flying into buildings. It wasn’t Osama bin Laden.
No, you had such amazing foresight to see the terrorist acts as mere distraction from the true threat — Bush. That is amazing.
Bush hadn’t set up military commissions. No one was at Guantanamo. No wars in Afghanistan or Iraq. No targeted killings. No detainees.
None of the policies which you object to had been formulated or implemented. And yet, you knew that Bush was the threat.
You are sick, and I’m through with you.
John, “I must confess to a Scalia-like mistrust of legislative history in determining the meaning of a statute.” But you’re missing something completely obvious. I didn’t bring up the legislative hisory to determine the meaning of the statute — I asserted the plain meaning of the statute and mentioned the legislative history because it deciseively refutes the fraudulent sophistry the apologists use to nullify the the statute out of existence. “This is particularly the case when the WCA provision regarding the Geneva Conventions punishes grave breaches of those conventions “or any protocol to such convention to which the United States is a party”. “There seems to be little logic in requiring the U.S. to be a party to a protocol as a condition to punishment if its terms are incorporated as customary international law.” Well the protocols have not in fact been ratified by the US, and it is controversial as to whether or not they are in fact customary law. Here again the text is plain, and I don’t rely on the protocols at all. Geneva 1949, the IMT Charter, and Hague IV 1907 are what I rely on. “The HR reference in the WCA is more generously worded… Read more »
Charles,
You may have the last word regarding the relationship of the WCA to the MCA. Readers can make up their own mids at this point. I simply ecourage you to remain civil and understand that reasonable minds may differ. Ours apparently do in some respects.
As a citizen, you are also entitled to your opinion regarding my duties. I would say that regardless of which hat I am wearing (scholar, lawyer, professor, etc.) they are to responsibly and dispassionately evaluate the applicable law. That includes admitting to a lack of complete clarity where it does not exist. This does not mean that I can ever manipulate the law to meet nefarious ends. Even when clarity is lacking, I must speak clearly to what I believe the law requires — but only when giving advice, representing a client or taking a position in a scholarly publication.
I do not – indeed, could not — here speak in an any official capacity. I am engaged in academic discourse on my own time in my capacity as a U.S. citizen. Please ensure you understand that both now and in the future.
HLS, Oh baloney, I just understand this stuff a lot better than you do, mostly because you aren’t evne trying. I’m a systems analyst, and the first thing a systems analyst worries about when the crap hits the fan is the worst case scenario. In this case, my basic assumptions on 911 were: The strategic aim of the attack was to provoke exactly the sort of reaction it got. The Bush administration was predisposed to overreact in exactly the ways that they did. We now have seven and a half years of evidence that confirms I was exactly right about the second point, and the fact that you didn’t understand what I said is purely a function of your own prejudices and ignorance. Get it straight: while George Bush was in office, he was the best weapon that Al Qaeda had. You hear that and immediately assume that it’s a slur simply because slurs are SOP for you neo-fascists, but to me it’s just a statement about the strategic and tactical realities of a war with terrorists, based on years of working out a general theory of such wars starting back in 1987. And you can make of that whatever… Read more »
PS for John Dehn: So here is the John Yoo OLC spin on 18 USC 2441(c)(2), quoting from a longer article on my PEGC Blog (“18 USC 2441” 2008.10.05): “With respect to the Hague Convention IV, section 2441(c)(2) criminalizes conduct barred by articles 23, 25, 27, 28, of the Annex to the Hague Convention IV. Under the Hague Convention, the conduct in these articles, like all of the regulations the Annex contains, is prohibited solely as between parties to the Convention. Hague Convention IV, art. 2 (“The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”). Since Afghanistan is not a party to the Hague Convention IV, no argument could be made that the Convention covers the Taliban. As a non-state, al Qaeda is likewise not a party to the Hague Convention IV. Moreover, Hague Convention IV requires that belligerents meet the same requirements that they must meet in order to receive the protections of GPW, which al Qaeda, and the Taliban do not meet. Thus, conduct toward enemy combatants in the current… Read more »
PS #2 to John Dehn,
Re the DTA and MCA being unconstitutional, see this article on my blog:
“Boumediene and 28 USC 2241(e)(2)” (2008.09.29)
And I have something to say to your last post too, but I have two doctor appointments this morning and will have to get to it later.
Charly
John, So regarding your last comment, my brief in the Guantanamo Bay Detainee Cases in the US District Court for the District of Columbia is available here: http://www.pegc.us/archive/DC_Gitmo_Cases_JHG/CBG_gitmo_amicus_20041012_full.pdf And includes my earlier brief in the Hamdi case before the US Supreme Court as an exhibit. You don’t have to read all of it, but note this… “As stated [above], the interest of Amicus in these cases began on November 13, 2001, upon first reading the PMO, it being immediately apparent that the intent of that order was to circumvent compliance with the Geneva conventions and other laws enacted since the end the Second World War. I began with nothing more than a general commitment to advocate opposition to the PMO, but when the White House issued the “Fact Sheet” on detainees of February 7, 2002 it was apparent to me that the government was in fact violating the Geneva Conventions, and from that point forward I have considered my effort a volunteer criminal investigation to uphold the laws of the United States in the public interest. “I claim no powers beyond those of a citizen of the United States, nor any authority beyond that which reason confers, but those suffice.… Read more »