Military Commissions Moving Ahead

by Deborah Pearlstein

Cross-posted at Balkinization

UPDATE: Thanks to “Anon” in comments for sending along a link to the engrossed text of the military commissions bill passed by the Senate last week.

I really hate to interrupt this great discussion about Kal’s even greater book, and hope to get into it myself before week’s out. In the meantime, I thought it worth noting that while most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). Meantime, as the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless.

Back to the substance of yesterday’s Senate Judiciary Committee hearing: military commissions. (Full disclosure, I was a witness at the hearing as well.) The Senate and the Administration appear to be inching closer to agreeing on procedural protections to govern at the commissions – rules that do some good things, including barring the use of evidence obtained by torture or cruel treatment. The Administration is also pushing to bar the inclusion of any statement obtained involuntarily (essentially the same constitutional rule that applies in Article III court), and to broaden the scope of Article III review on appeal of any commission trial.

The major points of contention at yesterday’s hearing focused on the proposed protocol put forward by the Administration’s Detention Policy Task Force for determining whether criminal prosecution of Guantanamo detainees should proceed in an Article III court or in military commission. The Administration’s protocol says there will be a “presumption” that cases will be brought in Article III courts “where feasible.” It also identifies a set of factors that will govern its choice between two available forums, including the nature and gravity of the offenses, matters of efficiency, and problems of evidence.

The Administration deserves some credit I suppose for having the “presumption” going the right direction. A non-binding resolution passed by the Senate last week would have a presumption in favor of trial by military commission for the Gitmo detainees (you can thank Senators Lieberman and Graham). Nonetheless, I think the protocol’s multifactor approach can’t be right – either as a matter of policy or of law.

The policy advantage of Article III courts seems to me evident: all of the tactical advantage of securing the long-term, legitimate detention of an actual terrorist, none of the strategic burden of doing it in a legally suspect (or at least reputationally tainted) forum. In all events, Republicans and Democrats both seemed to recognize that there is a huge legitimacy problem with seeming to forum shop on the basis of evidentiary burden. We can’t prove it in an Article III court, so we’ll try to get a conviction under easier rules just isn’t going to – and shouldn’t – fly. If that’s not what the Administration has in mind, the protocol needs some clarification.

Explaining why this forum selection approach is a legal problem is a somewhat more complicated undertaking. Here’s my current thinking on the law. The Administration’s “presumption” in favor of Article III trials is compelled by the Constitution. In cases like Toth v. Quarles, the Court made clear that the use of military trials for non-servicemembers is strictly limited: “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. …. Determining the scope of the constitutional power of Congress to authorize trial by [military court over non-servicemembers] presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’” Consistent with that “least possible power” understanding, to the extent the Court has recognized that Congress’ power to punish “Offenses against the Law of Nations” extends to the creation of military commissions for non-servicemembers (and Quirin is hardly what one would call pristine precedent), the Court has approved that authority only insofar as Congress’ military commissions legislation of the time was read to be consistent with the common law and international law of war that applied. That’s why, for example, Justice Stevens’ opinion in Hamdan was at pains to emphasize that the absence of “conspiracy” as a charging offense under the law of war was a jurisdictional problem for the last commissions.

As Justice Stevens pointed out, the justification at common law for military commissions was one of necessity. Military commissions were permissible as jurisdictional gap-fillers, where no other court was available (in cases of martial law, occupation, or in the midst of battlefield exigency). Seven years and thousands of miles removed from any actual battlefield exigency, there can be no argument that the military commissions at Guantanamo are serving any of these purposes. To the extent they may be justified in this context at all, it is as the only forum in which it is possible to charge violations of the law of war – either because there is no relevant charging offense under federal criminal law, or because federal criminal law did not at the time extend to cover extraterritorial offenses. I suppose other justifications might be offered, and I’d be happy to have them. But I doubt the we-can’t-win-under-the-evidentiary-standards-in-Article-III-court rationale is one of them.

13 Responses

  1. America has had a very inconsistent, if not hypocritical, <A HREF=””>record</A> regarding torture.  It’s odd how this country seems to be okay with dictating what others can do, and not following their own decrees.

  2. Deborah,

    Still vacationing but keeping up with OJ to an extent.  Posts such as yours tend to draw me out – making me feel compelled to comment.

    While I agree with you that evidentiary rules should not be the sole factor governing the selection of a trial court, I respectfully disagree with some of your analysis here.  In fact, I find some of it slightly misleading for the uninformed reader.

    First and foremost, Toth is completely inapposite to this discussion.  Indeed, I can think of only one case regarding military tribunal jurisdiction less relevant, that of Reid v. Covert.  Toth involved the prosecution of an honorably discharged former service member by court-martial for an offense allegedly committed while on active duty.  Reid involved the trial by courts-martial of a spouse who was stationed overseas with and who killed her military husband.  Both cases are tossed around in the discussion of military commissions.  I am at a loss to see how either case is relevant to the trial of a putative enemy of the U.S. by military commission for a law of war violation.  

    The use of Article III courts is not at all “compelled” by the Constitution in my humble opinion.  As we have discussed before, such claims are entirely contrary to history.  Quirin is not the only relevant precedent – regardless of its “suspect” status.  Yamashita also made clear that military commissions were constitutionally valid tribunals that do not exercise Article III judicial power.  This is why the Court has made clear that such tribunals must try only law of war offenses.  I agree with you that this is an absolute requirement (and a constitutional one at that) for the use of military commissions.  However, when a case involves such violations, Article III (standing alone) does not “compel” the use of federal courts.

    Additionally, the “necessity” required for the use of military commissions is not solely one of “jurisdictional gap-filler”.  Since the UCMJ was adopted in 1950, there has been jurisdiction to try these offenses at both courts-martial and military commissions.  I have not read the Hamdan plurality’s discussion on this recently.  However, my recollection is that it is broader than a “gap-filler” analysis.

    The so-called “battlefield” requirement is based in Winthrop’s statement that such commissions must be convened in the “field of command” of the convening commander.  It is not necessarily a “battlefield” tribunal when the convening authority is the commander-in-chief or a duly appointed representative.  (I am still researching this precise issue.)

    Closely related to the prior point, given the War Crimes Act’s assertion of jurisdiction over a broad range of law of war offenses based on both active and passive nationality (i.e. both territory immaterial bases), there are a very limited number of commission offenses that are without jurisdiction in the federal courts.  

    This issue has an interesting history that is more related to time than place.  One of Winthrop’s “necessity” elements is that military commissions must be convened during an armed conflict.  This element was at issue in Yamashita, who was tried after the close of general hostilities but before the formal peace agreement.  The Supreme Court ultimately found that the commission had the power to proceed prior to the formal conclusion of peace, and that the offenses tried were law of war offenses.  It therefore upheld the conviction.  Congress passed the WCA in 1996 to fill a jurisdictional gap as to the trial of law of war offenses that might arise after the close of hostilities (or after the discharge of a U.S. service member).  It did not create (or perhaps more accurately, preserve in Art. 21 of the UCMJ – formerly Art. 15 of the Articles of War) military commission jurisdiction to fill a gap in Article III jurisdiction.  Prior to the WCA, military commissions and courts-martial were the only way to try such offenses in the U.S.  There are a few possible reasons for this that I am exploring in my research.  While they may have filled a jurisdictional gap at their origin, the “jurisdictional gap-filler” claim loses its appeal after the UCMJ preserves the concurrent jurisdiction of these (and other) military tribunals while at the same time granting it to courts-martial for identical individuals and offenses.

    I agree with you that the former administration’s approach to military commissions may have tainted them beyond any complete repair to their perceived legitimacy.  That said, it is naive to believe or suggest (not that you necessarily are) that legitimate or “legal” battlefield justice can only be achieved through the use of a peacetime tribunals or rules of evidence.  The rules of evidence have not been the same for a reason.  Having participated in the investigation and prosecution of “battlefield” crimes by U.S. soldiers, I am acutely aware of the difficulties the rules of evidence create in preparing and presenting a compelling case (both as to guilt and sentence).  This is not to say that involuntary admissions should ever be introduced.  However, the relaxation of hearsay and other (primarily foundational) evidentiary rules is not the end of justice as we know it.  As Kevin has previously observed, international and foreign tribunals do not necessarily have some of these rules.  Indeed, as you are no doubt aware, organizations such as Amnesty International and Human Rights Watch do not hesitate to use information that would be inadmissible in a U.S. federal court (such as hearsay) to “substantiate” war crimes allegations…nor do they observe a “beyond a reasonable doubt” burden of proof.

    In the end, it may be bad policy to justify the use of these tribunals primarily on evidentiary concerns given that their legitimacy – uhm – “challenges” arise from precisely that issue.  However, as a historical matter this is not the sole or even a primary basis for their use – either at their origins or in their statutory recognition and preservation in the UCMJ.

    I anxiously await disclosure of the proposed changes!

  3. FYI, S. 1390 was split into three bills immediately after passage. S. 1391 has the revised Military Commissions Act in it (as slightly amended since committee passage, including a bastardized version of a Classified Information Procedures Act-style amendment), as does S. 1390 (it was separated for ease/advantage in conferencing with the House, I believe; both bear watching).  

    Here’s S. 1390, as engrossed by the Senate:

    Deborah’s testimony to the House and Senate have been very valuable, as has her blogging on this issue. I thought her Senate testimony improved on the earlier House testimony, by starting to draw attention to the need for the Judicial Branch to be involved, based on separation of powers principles (since military justice courts are a serious departure from open government and due process if not scrupulously overseen), especially considering the complete abdication by Congress of meaningful oversight of military justice matters.

    Questions that still seem to need to be pinned down:

    1. CAN courts-martial under the UCMJ be the military court alternative to civilian courts for war-crime suspects, rather than a lesser-standard Military Commission system? Because if they can, it seems obvious that they SHOULD be used, instead of inventing a duplicative, but vastly inferior system.  [A system that seems to be purposely pursued because it evades UCMJ standards, and creates a segregated lesser system for foreign Muslim suspects that’s outside the system of military justice we use to punish our own servicemembers.]

    Deborah seems to be indicating Supreme Court precedent would say no, if at all possible (which of course, would say the same about Military Commissions; and obviously the more the latter are restricted, the less appealing they will be to their proponents).

    2. The other thing that seems to be in desperate need of clarification is the real-world conditions of our armed conflicts abroad: ARE we still in a non-international armed conflict in Afghanistan, with the right to dictate detention policy (where POW standards remain out of play)? And is invading private homes in foreign lands at night a “battlefield”? A battlefield where WE can assert the right to wage “war” on, and take prisoners from, those homes, based on intelligence (not active fighting), but when the (perhaps-innocent) inhabitants then resist our home invasion, THEY are committing “war crimes” punishable by military commission at some possible future date?? Of course, this is the job of Congress to explore and ascertain, but the Armed Services Committees under Levin and Skelton seem to have NO interest in verifying and enforcing humane conditions of detention in our military prisons, or bringing to light the reality of our presence in Afghanistan as it relates to detaining prisoners, or anything else.

    Which is all the more reason why we need a branch of government (the Judiciary) that WILL do its duty to check the Executive by ENFORCING the laws its charged with honoring, as the Supreme Court seems to have rightly recognized.

  4. Hi John – Thanks very much as always for the thoughtful post. You raise good questions, so let me try to clarify a bit. First, I didn’t mean to suggest that cases like Toth or Reid and the like are in any way the centrally controlling precedent here.  Rather, I meant to be citing them as evidence, along with Quirin, Milligan, etc. of the Court’s understanding that there are limits on Congress’ Article I power to use military courts.  The question in the present military commission context – one the Hamdan court didn’t have occasion to answer – is what those limits are, and the extent to which they are defined or informed by the international law of war and/or the historical practice/common law of military commissions.  As you and I both agree, it seems clear one of the limits is that only law-of-war offenses can be charged in military commissions. Sounds like we may also agree that military commissions must be tied to a particular armed conflict; that is, you can’t have a war crime without a war.  Beyond that, the question I’m raising is whether there are any constitutional (or other limits) that might be relevant to the executive’s choice between military commission prosecution and Article III prosecution – when both are lawfully available.  So to be clear, I’m not at all suggesting that the existence of Article III precludes the existence of military commissions. I’m suggesting that where there is a choice of forums, the “preference” in favor of Article III courts may have some constitutional dimension.

  5. Hi Deborah, I agree with everything you say except that there is any preference for Art. III courts for these offenses based in the Constitution.  In fact, the opposite may be true as a matter of precedent (which I will discuss in future work).  Further, neither Quirin nor Yamashita establish any robust Art. III court supervision.  They articulate clearly that they review jurisdictional issues only, not substantive law (except as necessary to jurisdiction).  There are some key questions raised by modern IHL that must be answered to assess the current constitutional status of military commissions.

    Anon – very clearly courts-martial had pre-existing statutory authority/jurisdiction to try these individuals and offenses.  The problem is that the Military Rules of Evidence “codify” a great many of the constitutional rules of evidence that federal courts apply by “common law.”  (This is no doubt to avoid extraterritorial applicability arguments regarding their scope of application to service members.)  Others are incorporated by reference and would allow the courts to modify their applicability in accordance with constitutional requirements — or a lack thereof.  Thus, it is hard to say that they “should” be used because some of their rules may not be constitutionally required and might also  prevent effective (and just) prosecution. 

    Historically, the judiciary has (rightly) refrained from attempting to supervise the day-to-day fighting of armed conflicts.  However, I agree that there is little reason for them not to look into conditions of detention.  That said, there is a very clear historical basis for their not doing so.  Again, I will be discussing more completely this in future work.


  6. Another FYI:

    Rep. Nadler’s <b>House</b> Judiciary Subcommittee is holding another hearing on Military Commissions this afternoon (started at 1 p.m., should still be ongoing).  Kris & Johnson testifying again for the administration; Eugene Fidell is among the witnesses in Panel II.

    Webstream link is here:

    Here’s Professor Fidell’s opening statement:

  7. I’m late to this fascinating party, but wonder if we’re not talking past each other a bit here.

    It strikes me that the critical proposition is not whether military and civilian criminal jurisdiction can overlap, but to what extent.  Once you have a case where they can (and I think Deborah, John, and I all agree that such cases exist), I’m hard-pressed to think of a constitutional provision that would require the choice of one forum over the other.

    But I also think the Constitution has more to say about just how large (or narrow) the class of cases are in which the two jurisdictions can overlap.  Taking Quirin and Yamashita at face value, the Constitution limits that class of cases to those in which military jurisdiction is consistent with the laws of war, meaning that the offender is a “belligerent,” and the offense is recognized as triable by a military commission under the laws of war. That, I trust, is common ground.

    But at some point, we have to ask the hard question: Should we take Quirin and Yamashita at face value? It was easy to do so when, even under their rules, the commissions created by President Bush didn’t pass muster (see Hamdan). But I’m not so sure we should so quickly assume that Quirin is correct in how it distinguishes Milligan… And the more of Milligan that survives Quirin, the narrower the class of cases where military courts will be entitled to exercise jurisdiction that civilian courts could also exercise… Perhaps we’re still going to have to evaluate whether the availability of civilian criminal process might override the laws of war in some cases. That’s where I get stuck.

  8. I think Professor Fidell captures it for me (from my link to his testimony today, in an awaitng-moderation comment above; the webstream seems to be idled or off-line):

    “The [2006 Military Commissions Act] was most unwise. It left us with the traditional military justice system which permits war crimes to be tried by general courts-martial, a set of military commissions for trying war crimes by lawful combatants, and yet another set of military commissions for trying war crimes (and other offenses) by unlawful combatants.

    The result is senseless. We don’t need two flavors of military commissions; indeed we may not even need one. I would therefore advise that the MCA be repealed and if military commissions prove necessary, let them conform with general court-martial procedures and rules subject to a very few exceptions such as dispensing with the need for a pre-trial investigation.”

    Also note his commentary on Sec. 950p(c), among others:

    “Section 950p(c) permits military commission trials only if the offense is committed in the context of and associated with armed conflict. This loose standard could sweep in non-battlefield conduct not subject to trial by military tribunals under the law of armed conflict.”

  9. The House Judiciary subcommittee hearing is now underway – apparently it started a couple of hours later than scheduled.  Nadler just gave his opening statement.  
    The link again:

  10. Steve,

    It sounds as if we all agree in large measure.  I do not believe we are talking past one another.  It does seem that Deborah and I may disagree on a few minor incidental issues.

    I personally do not believe Milligan requires much distinguishing in relation to Quirin.  The majority opinion in Milligan did a great deal of “distinguishing” of its own.   Quirin is not the only case or instance in which the U.S. or its courts have  distinguished Milligan, at least implicitly.  John Bickers (cited in Hamdan) quite effectively argued that Milligan involved an entirely different “type” of military commission (or, perhaps more appropriately, a different “form” military jurisdiction).  I agree and find it to be fully consistent with the historical development (and lost or incomplete underlying theory) of military commissions.  I am working on an article to explain that theory as we speak.

    Best to all,


  11. Just for the record, Major David Frakt’s potent testimony today singled out the one UCMJ provision that Professor Fidell mentioned as perhaps optional in Military Commissions, as a key safeguard that belongs in any future Military Commission legislation [although Frakt basically agrees with Fidell that Congress should repeal MCA and start over by following the UCMJ]:

    “The MCA eliminated one of the best features of the military justice system, the Article 32 pretrial investigation. Article 32 of the UCMJ, sets forth the requirements of a “thorough and impartial investigation” prior to referral of charges to a General Court-Martial. Under Article 32, a neutral, experienced investigating officer, typically a senior JAG officer, investigates the charges, determines if there are reasonable grounds to believe the offenses were committed by the accused, explores potential legal and evidentiary issues, and makes recommendations as to the appropriate disposition of the charges. The Article 32 investigation also provides an opportunity for the defense to receive a significant amount of discovery early in the process. Article 32 investigations frequently help to winnow out weak or duplicative charges and narrow the issues for trial; they can also facilitate pre-trial agreements. The lack of any pretrial investigation is a serious limitation on the due process available in military commissions, and gives far too much power to the prosecution. It is contrary to both domestic and international practice for serious offenses (including capital offenses) to be referred to trial without any independent review. In federal court, a grand jury indictment is required for any felony. State courts require either a grand jury or a preliminary hearing in front of a judge. International war crimes tribunals such as the ICC and ICTY require approval from the pre-trial chamber. A pretrial investigation requirement modeled on Article 32 and Rule for Court-Martial 405 should be incorporated into the MCA.”

  12. Anon, 

    That two defense-oriented attorneys cannot agree on the centrality of Article 32 hearings to a just military commission process should be all that is necessary to undermine the good major’s claim.  I am by no means a fan of the MCA, but this testimony seems to be both superfluous and misleading.  The exclusion of an Article 32 hearing does not remove the only safeguards available to ensure that baseless or unwarranted charges are not brought to trial.  The officer preferring charges must swear to them and their accuracy.  The legal advisor to the convening authority must also independently advise whether the charges are adequately supported before any charge may be referred to trial.  A failure in either area can be raised to the judge after referral.  (Although some may have failed in their duties or to preserve their independence, most do not.)  

    The actual purpose of the Article 32 is misrepresented here.  Although a “senior JAG officer” is the Article 32 investigating officer more and more often, particularly in high profile cases, that is not what Article 32 of the Rules for Courts-Martial require.  Indeed, the process might be better served by using an impartial non-lawyer to hear the evidence and render an independent, non-binding recommendation to the convening authority.  That is all that is produced by an Article 32 hearing, a non-binding recommendation.  Thus, its claimed function by the major is misleading.  The legal advisor’s recommendation is the actual gate keeping device.

    I think it is more important to focus for the time being on what aspects of the MCA MUST be corrected to in order to make its commissions consistent with the Constitution and our international obligations (if that is possible – and I am not yet sure that it is).  A parade of folks asserting what they think would make military commissions ideal does not help to identify and address these fundamental issues.  That the defense does not have every possible advantage available to it is not what makes a process fair or just.  It is the prosecution that must prove the charges beyond a reasonable doubt through admissible evidence.  That in itself is not as easily accomplished in military tribunals as people tend to think.

    I do thank you for the updates on the hearings though.  I hope these comments help to place them in context for OJ readers unfamiliar with the military justice process.

  13. Response…  Very interesting dialogue and my short response.  Under the UCMJ, there has always been the option to try an appropriate suspect under its Article 21 without resort to the military commission.  However, I believe that because the UCMJ’s rules of evidence so closely parallel the FRE, there was a decided attempt to create the MCA 2005 followed by the post S.CT. ruling fostering  the 2006 enactment that still tilted the evidence and procedural rules in favor of the government.  “Fixing” the MCA 2006 does not seem a realistic or viable option.  Given its abysmal record of almost no convictions and the Byzantine approach to the pre-trial process, it deserves to be scrapped.  Second, there neither was nor is any concurrent “military necessity” for them in the traditional sense, which only serves to expose the obvious defects and ill-advised applications. 

    In the case of the most recently released detainee, a Afghani Pashtu juvenile when captured, the MCA should never have even been considered in light of the Child Soldier Protocol, which the government elected to ignore.  In order to preserve the legitimate possibility of military commissions for future conflicts with an appropriate use, Congress ought to avoid attempting to unwind the problems with the current version.  And, the hearings will go on……



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