Professor David Sloss of Saint Louis University has provided this commentary on the Military Commissions Act. David has published widely in the area of foreign relations law. We are pleased to welcome his comments here:
The Military Commissions Act of 2006 contains a number of provisions that raise intriguing constitutional and statutory interpretation questions. This comment will focus on issues pertaining to judicial review of individual claims based on the Geneva Conventions.
There is no doubt that Congress has the constitutional authority to enact legislation superseding the Geneva Conventions. Thus, for example, Congress could have added language to the Military Commissions Act of 2006 along the following lines: “In the event of a conflict between the Geneva Conventions and the procedures specified herein, courts shall apply the procedures embodied in this Act.” Such language would preclude courts from applying the Geneva Conventions by making clear that Congress intended to supersede the Conventions as a matter of domestic law. However, the Military Commissions Act of 2006 does not contain any such provision. Section 3 of the Act creates a new Chapter 47A in Title 10 of the U.S. Code. Section 948b(f) of the new Chapter 47A declares that “[a] military commission established under this chapter” satisfies the requirements “of common Article 3 of the Geneva Conventions.” Thus, section 948b(f) clearly expresses Congress’ intention to comply with common Article 3, not to supersede that provision. The question whether the procedures adopted by Congress actually do comply with the requirements of Common Article 3 is arguably a judicial question, not a legislative question. Insofar as section 948b(f) expresses Congress’ opinion about that judicial question, it is doubtful whether that opinion is binding on U.S. courts. Whether, and to what extent, the courts will or should defer to Congress’ opinion is a separate issue.
Section 950g(a)(1)(A) of the new Chapter 47A authorizes both the D.C. Circuit and the Supreme Court “to determine the validity of a final judgment rendered by a military commission . . . under this chapter.” Section 5(a) of the Military Commissions Act of 2006 states: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” The language of Section 5(a) of the Military Commissions Act, on its face, applies only to a “habeas corpus or other civil action.” The statute does not specify the procedure for exercising judicial review of a criminal conviction handed down by a military commission, pursuant to section 950g(a)(1)(A). However, the proper procedure is arguably an appeal from a criminal conviction, not a habeas corpus proceeding or a civil action. Therefore, as a matter of statutory interpretation, Section 5(a) may not preclude a criminal defendant convicted by a military commission from invoking the Geneva Conventions in an appeal to the D.C. Circuit and the Supreme Court.
If the Supreme Court disagrees with this interpretation, and construes Section 5(a) to prohibit a criminal defendant from invoking the Geneva Conventions in an appeal from the final judgment of a military commission, the Court will have to decide whether 5(a) is constitutional. It is firmly established that the government “must afford all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971). Although there is no case directly on point, the “opportunity to be heard” arguably means that, if a criminal defendant contests the validity of procedures utilized by the government to obtain a criminal conviction, he has the opportunity to raise any legal argument he chooses, and the court has a duty to address the merits of that argument (assuming that the defendant has not waived the argument, for example, by failing to raise it in a timely fashion).
The opportunity to be heard is an essential procedural right of both civil and criminal defendants. Although the Due Process Clause does not guarantee plaintiffs a right of access to courts, “due process of law signifies a right to be heard in one’s defense.” Id. at 377. The distinction between plaintiffs and defendants is fundamental, because plaintiffs have the option of resolving their disputes through “private structuring of individual relationships,” but defendants are “forced to settle their claims of right and duty through the judicial process.” Id. at 375-77. Even in the nineteenth century, well before the advent of the modern “due process revolution,” the Supreme Court affirmed the principle that defendants must have an opportunity to be heard. See, e.g., Windsor v. McVeigh, 93 U.S. 274, 277 (1876) (“Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.”) Therefore, if the Supreme Court construes Section 5(a) of the Military Commissions Act to preclude defendants from invoking the Geneva Conventions in an appeal from a criminal conviction, Section 5(a) may be inconsistent with the requirements of the Due Process Clause.
Recently we had a panel discussion on the constitutionality of the Military Commissions Act at UC Hastings. Excerpts and a summary of the discussion can be found here.
Therefore, as a matter of statutory interpretation, Section 5(a) may not preclude a criminal defendant convicted by a military commission from invoking the Geneva Conventions in an appeal to the D.C. Circuit and the Supreme Court. Professor Sloss: I think you may have missed section 948b(g) of the MCA, which expressly provides that no alien unlawful enemy combatant subject to trial by military commission “may invoke the Geneva Conventions as a source of rights.” As for your due process argument, it seems like a loser to me. Section 948b(g) is little more than a congressional determination that the Geneva Conventions are not judicially enforcebable. But, even before the MCA was enacted, that was likely true. After all, it has been the consistent position of the USG — one accepted by the DC Circuit in Hamdan (in reliance on Johnson v. Eisentrager) — that the 1949 Conventions are not judicially enforceable by private parties. (The Supreme Court, alas, sidestepped that question.) The MCA simply removes any ambiguity about judicial enforceability, effectively endorsing the DC Circuit’s result. How does that violate due process? The situation is not materially different from an ordinary treaty reservation that makes a treaty non-self-executing. It seems quite… Read more »