REVISED — Military Commissions, Round 3

REVISED — Military Commissions, Round 3

Cross-posted at Balkinization

Here follows a revised version of the blog I posted earlier today. It turns out the final version of the legislation that passed the House was largely untouched after all. The full text of the mammoth Defense Authorization Bill in which the military commissions legislation is included is available here; the military commissions provisions are found beginning at p. 979. Serves me right for trusting any old email attachment headed “Military Commission Legislation as Passed.” My sincere apologies to readers.

The revised take is somewhat more favorable: Unlike Congress’ incoherent efforts to prohibit the transfer of Guantanamo detainees to the United States for trial (which for the moment appear to have failed), and Lindsay Graham’s (similarly incoherent and now unsuccessful) efforts to require that certain detainees be tried in military commissions even if they could be prosecuted in federal criminal court (the opposite of the way the Supreme Court has traditionally understood military courts of necessity to work), the new military commissions legislation remains a mixed bag. It has some good changes, some not so good, and some provisions whose impact will have to be determined in practice.

The Good

There are certainly some improvements in this bill over the military commissions act passed by Congress in 2006, in the wake of the Supreme Court’s Hamdan decision declaring unlawful the first Bush Administration commissions (pursued without congressional authorization). For instance, the new law removes previous language prohibiting anyone from “invoking” the Geneva Conventions as a “source of rights” in any U.S. court. There is instead a much narrower provision denying any unprivileged enemy belligerent a cause of action under the Geneva Conventions. What’s the difference? If a court has jurisdiction over a detainee case already (because he’s seeking a writ of habeas corpus, or defending himself against criminal charges, etc.), the Geneva Conventions may be a source of rights. But the Conventions cannot of themselves get a detainee into court if he has no other reason for being there. At least Congress is no longer trying tell the courts to ignore large swaths of what is, in fact, the Supreme Law of the Land. U.S. Const., art. VI.

In addition to securing the prohibition on evidence obtained by torture or “cruel, inhuman or degrading treatment,” the Administration can also claim substantial victory in having inserted into the legislation the requirement that all statements must be “voluntary” to be admissible in commission proceedings. The interest in a voluntariness standard reflects the understanding that even if a detainee’s treatment didn’t rise to the level of “torture” or “cruel treatment” as a matter of law (evidence that is banned categorically), it might still be possible for evidence to be obtained by a level of coercion inconsistent with the Constitution – and as a result to be insufficiently reliable to justify criminal prosecution. The voluntariness protection in the new commissions bill allows for some exceptions – involving statements made at the point of capture – but it is unquestionably an improvement over the military commissions act of 2006.

The Bad

Slotted randomly into a “general provisions” section of the mammoth authorization bill – not in the military commissions subsection proper – is a provision that I would find truly appalling if not for its self-refuting non-applicability to the Department of Justice (the only agency to whom the provision would realistically apply in the first instance). Here’s the language: “Absent a court order requiring the reading of such statements, no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility the statement required by Miranda v. Arizona (384 U.S. 436 (1966)), or otherwise inform such an individual of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona (384 U.S. 436 (1966)).”

The upshot, I imagine, is to make really really sure that no soldier or CIA agent ever reads anyone Miranda warnings. Nevermind if the occasion on which reading rights might make sense is years and miles removed from any actual battlefield, or if the simple reading of rights is all that stands in the way of welcoming a detainee to a lifetime of lawful imprisonment (after successful conviction in federal criminal court) rather than sending him off to Saudi Arabia for “rehabilitation.” To be clear, I do not mean to suggest that I think soldiers, for example, are somehow required to read combatant detainees Miranda warnings. Just the opposite: current law on Miranda warnings recognizes an exigency exception to the reading of such rights that surely extends to battlefield situations. And Miranda of course only comes into play at all if prosecution becomes appropriate. But it is one thing to recognize that the law, appropriately, does not require the reading of such warnings. It is another thing to affirmatively prohibit their use – even if Mirandizing a detainee at some point would open up a possibility of prosecution that actually serves the national security interest of the United States. I don’t wish to overstate the point. Given that the provision excepts the Justice Department from its purview – such that any FBI agent is free to administer the relevant warnings if appropriate – I believe the provision is toothless enough to have no serious impact on actual operations to be of much concern. It seems important to note, nonetheless.

The Not So Good

The definition of who may be tried by military commission is broader than the definition (at least according to several of the federal district courts currently hearing Gitmo detainee habeas petitions) for who may be detained under the 2001 Authorization for the Use of Military Force (as informed by international humanitarian law/the law of war). Under the new law, those who may be tried by military commissions are described as “unprivileged enemy belligerents,” theoretically a law-of-war term, but here meaning not only individuals who have actually “engaged in hostilities against the United States,” but also individuals who have “purposefully and materially supported hostilities against the United States or its coalition partners.” As Judge Bates explained in his habeas opinion interpreting the AUMF and rejecting the notion that “material support” alone could qualify one for belligerent status (essentially permitting detention until the conclusion of the relevant armed conflict), there is no basis in the law of war for understanding “support” per se as sufficient to qualify one for belligerent status (as opposed to simply domestic criminal conduct). I’m pretty sure Judge Bates got this part right. The inclusion of a requirement that the support be “purposeful” is certainly wise, helping to ensure that not just any civilian taxpayer could be considered a belligerent (rather than a civilian, protected from, say, targeting). But it remains far from clear the material support language in this bill reflects any established law of war understanding.

Beyond the apparent mismatch between the military commission definition and international law, does the definition of unprivileged belligerent under the MCA have to match the definition of unprivileged belligerent under the AUMF? Well, if the new approach to counterterrorism is supposed to have the United States taking international law seriously, it would be nice if a consistent understanding of who may be subject to the laws of war – and who may not – were reflected in its statutory authority. Add this to the list of litigating issues.

The Uncertain

Which brings us to another piece of the new bill that doesn’t look good on paper: Despite its absence from any list of recognizable, international “war crimes,” “material support” is still a triable criminal offense by U.S. military commission. Indeed, while effectively insisting that “material support” is a war crime – the sole putative justification for having trials by military court rather than in civilian federal court – the bill expressly defines the war crime of military support to be identical to the civilian crime of materials support, prohibited (and well used) under the existing federal civilian criminal law. Not good. So why is this provision in my uncertain category, rather than just plain “not so good”? Well, the Obama Administration had opposed its inclusion in the revised legislation – a battle it evidently did not win on the Hill. And Assistant Attorney General David Kris suggested last week in remarks at an American Constitution Society event in Washington, D.C., that DOJ was still studying whether or not it could be pursued as a war crimes charge. So it appears still possible the Obama Administration may decide not to exercise the authority Congress is about to give it. In the interest of lending legitimacy (not to mention legality) to proceedings overall, it would be wise to refrain. Wiser still would’ve been a decision on Capitol Hill not to include the provision at all.

The same logic applies to the Administration’s apparent failure to secure a sunset provision in the current bill. Could the military commissions continue in perpetuity, even after Guantanamo itself is emptied? The text of the bill doesn’t settle it definitively. Might the President decide to abandon the new commission system after the Gitmo anvil is off his back? Perhaps. Far better, again, would have been something that clearly limited the duration of the commission as a matter of law – so the stricture would remain no matter who is President. And so Congress’ power to establish military courts under Article I were more plainly limited to the specific exigencies of a specific war.

Finally, how broad is the scope of review on appeal of commission verdicts to the U.S. Court of Appeals for the D.C. Circuit? The 2006 military commissions legislation granted only narrow review authority to the civilian Article III courts, permitting it to review commission convictions only to determine whether the verdict was consistent with commission rules or with the U.S. Constitution and laws. Review of factual findings, for example, seemed to be foreclosed altogether. Does the new law include review as to questions of fact, as well as law? The review provision is quirky: “The United States Court of Appeals for the District of Columbia Circuit may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review, and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict.” Given the availability of review for sufficiency of the evidence, an appeals court would be hard pressed to foreclose arguments about the facts entirely. We’ll have to see how deferential the courts are prepared to be as cases start to come their way.

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Howard Gilbert
Howard Gilbert

Miranda deals with criminal, not military detention. The constitution actually states,  “nor shall be compelled in any criminal case to be a witness against himself”. When someone is taken into custody by the Police as a criminal suspect, those words translate into a right to remain silent. This law deals with “a foreign national who is captured or detained as an enemy combatant.” An enemy soldier is not a criminal. His detention as a prisoner of war is not a criminal case and is not covered by that part of the Fifth and all of the Sixth Amendment. Years later it may be determined that he committed crimes and he may be tried before either a Commission or a Federal Court. At that point he would be arrested, charged, and then Mirandized. Once charged, he has a right to remain silent. The question is then whether statements he made as a prisoner of war who was only being interrogated for military intelligence are admissible in a subsequent criminal trial if the only reason for excluding them is that he was not Mirandized when captured. While a criminal suspect has a right to remain silent, a combatant is obligated by international… Read more »

Howard Gilbert
Howard Gilbert

If we are going to complain that “purposefully and materially supported hostilities” is vague, it would be helpful to suggest alternatives. I suggest we begin with everyone who it would have been legal to target with lethal military force at any time under the ICRC “Interpretive Guidance on the Notion of Direct Participation in Hostilities”. This includes organized armed groups engaged in continuous combat function and civilians who directly participate in hostilities as described in the document.

As a starting point, this definition should be relatively uncontroversial, yet it seems to cover the most widely discussed detainee cases that have come or are expected to come before commissions. With these cases removed, we can then ask if anyone not covered by the ICRC guidance will be charged for some different activity and whether that type of activity is legitimately characterized as defining an “unprivileged enemy belligerent”.

John C. Dehn

While Deborah and I agree on some things, I must disagree with two of her statements, and slightly disagree on two other matters. I, like Howard, do not believe the Fifth Amendment applies at all to the military detention, interrogation or trial of a public enemy of the United States.  It simply never has, and the assertion that it might or should conveniently (for those seeking to increase rights for such detainees) ignores our entire legal history on this matter.  The prohibition might not be the proper way to articulate this, but it makes the point for the courts and prevents low-level legal advisors from giving different guidance. Unless the administration fails to articulate the law properly, I believe the courts will find Miranda warnings unnecessary regardless of where an enemy is ultimately tried.  The caveat might be a detention solely by law enforcement and trial in federal district court of an individual within the scope of hostilities authorized by the AUMF.  The removal of the military from the equation in such a circumstance might change the courts’ view of the matter, though it probably should not from a constitutional standpoint.  I simply do not accept the logic that the Fifth… Read more »

Howard Gilbert
Howard Gilbert

There is a very important difference between the old MCA and this new text that could change everything. The old MCA defined the term “unlawful enemy combatant” to mean “a person who has engaged in hostilities … who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” That is, members of the Taliban and al Qaeda were defined to be unlawful enemy combatants subject to trial by military commission. In the few commission trials that were held, the military judges declined to inquire into the lawful/unlawful distinction because the text of the law made that decision for them. The new MCA (MCA 2.0?) defines privileged belligerents as persons meeting the criteria of Article 4 of the Third Geneva Convention. It then defines unprivileged belligerents as “an individual (other than a privileged belligerent) who …” [engages in hostilities or is a member of al Qaeda]. This language separates the “other than a privileged belligerent” from the term “al Qaeda” by subsections (A), (B), and (C). So while a member of al Qaeda is clearly an enemy belligerent, the question of whether he is privileged or not is now a completely… Read more »


[…] At the same time, and despite the Obama administration’s explicit opposition, the new legislation includes “material support for terrorism” (§ 950t(25)) on the list of offences prosecutable by military commissions. Again, such militarization of a regular civilian crime of material support has no clear basis in the LOAC and international criminal law, and is problematic from the US domestic law perspective as well (see Deborah Pearlstein’s take on that at Opinio Juris). […]