This is the third in planned four part series of diaries on the Military Commissions Act ("MCA"). Part 1, which appeared on Thursday, is here. Part 2, analyzing the expansion of executive power, appeared yesterday. Space considerations have again required a change in plans. Half of the analysis of the proposed changes to the MCA -- regarding its potential applicability to U.S. citizens -- will appear in tomorrow's diary, along with some relevant psychological analysis.
Today's diary examines the Military Commissions Act of 2006 itself and is essence a guide to what of its aspects most need to be changed. After quickly noting the bipartisan bill to eliminate jurisdiction-stripping provisions, the MCA is analyzed by reviewing each section (except the one saved for tomorrow) of the main proposal to amend it. A substantially truncated version of what was to be tomorrow's analysis of the benign-looking Manual for Military Commissions, which will actually govern such commissions, appears at the end of this diary.
This diary is part of the broader series organized by Jay Elias called Restoring Our Constitution, which now has its own dedicated DKosopedia page.
This diary is intended for those with a truly morbid curiosity about the law. We'll take a look at the two bills being sponsored to amend the Military Commissions Act of 2006. A detailed review of the second, more substantial, proposal will allow us to review the most disturbing provisions of the MCA in detail.
6. S185, the "Habeas Corpus Restoration Act of 2007"
Let's start with the shorter provision, the proposed sponsored by Senators Leahy and Specter. The important section is actually quite short:
(a) In General- Section 2241 of title 28, United States Code, is amended by striking subsection (e).
(b) Title 10- Section 950j of title 10, United States Code, is amended by striking subsection (b) and inserting the following:
`(b) Limited Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.'.
As Senator Specter explained explained when introducing this legislation last December, 28 U.S.C. § 2241(e) -- that's how we attorneys write "subsection (e) of section 2241 of title 28 of the United States Code [of federal statutes]" -- was the section of the Military Commissions Act that
would bar any alien detained by the United States as an enemy combatant from filing a writ of habeas corpus. The new paragraph was to apply to all pending cases ``without exception'' thereby barring all pending habeas corpus applications pending on behalf of Guantanamo Bay detainees.
Furthermore, a new habeas limitation in the MCA that would become 10 U.S.C. § 950j(b)
barred any habeas review of military commission procedures. Had this bill been passed before the Hamdan v. Rumsfeld case was decided, the Supreme Court would not have had jurisdiction to review and reject the military commission procedures that were at issue.
These, as you will remember, are jurisdiction stripping measures, the first for individual writs of habeas and the second for the entire law itself. To hear this case at all, a court -- including the Supreme Court -- must first decide that the latter is unconstitutional. The MCA sought to make that impossible.
7. S 576, the Restoring the Constitution Act of 2007.
This bill, sponsored by Sen. Dodd, Sen. Feingold, Sen. Menendez, and Sen. Leahy, is much more comprehensive, addressing the substantive deficiencies of the bill as well as the jurisdiction stripping language. As usual, it's worth clicking on the text of the legislation available through "Thomas" -- click "text of legislation" and then "printer-friendly display" -- to see the whole thing. This will tell us where we need to focus when we look at the law.
Section 1 just gives you the bill's name. I'm saving Section 2 for a separate diary tomorrow.
Section 3 amends 10 U.S.C. 948b(g) to read:
(g) Construction With Geneva Conventions- To the extent that any provision of this chapter is determined to be inconsistent with the obligations of the United States under the Geneva Conventions, the Geneva Conventions shall prevail, and such provision shall be deemed to have no further force or effect.
You may remember from my diary last Thursday that this section now reads "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." A major difference here.
Section 4 simply strikes 10 U.S.C. 948d(c) altogether. That's the section that now reads
Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
Remember my discussion Thursday of how bad the CSRTs were found to be? This language makes them "dispositive" -- once the CSRT has ruled, the question of whether you're subject to a military commission has been disposed of. Well, that's not the whole story -- it could also be another competent tribunal that the President or Secretary of Defense establishes. If that sounds like giving out a blank check to come up with a new rubber-stamp "tribunal" if the need arises, it is.
Section 5 deals with who may serve as Trial Counsel and Defense Counsel. I won't go into it here.
Section 6 replaced 10 U.S.C. 948r(c) and (d) with this:
Exclusion of Statements Obtained by Coercion- A statement obtained by use of coercion shall not be admissible in a military commission under this chapter, except against a person accused of coercion as evidence that the statement was made.
That prohibition replaces this language in the current law:
(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
(2) the interests of justice would best be served by admission of the statement into evidence.
(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
(2) the interests of justice would best be served by admission of the statement into evidence; and
(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.
Could one drive a truck through those loopholes? Oh yes, one could.
Section 7 brings back some of the traditional rules of evidence and procedure into military tribunals. It restores the place of the exclusionary rule and strengthens the ability of the judge to exclude hearsay evidence.
Section 8 allows the accused the right of self-representation, as in the judicial system.
Section 9 allows the military judge to "disclose to defense counsel the sources, methods, or activities (including classified sources, methods, or activities) by which the United States obtained any out of court statement the United States intends to introduce at trial," if this seems important to assessing the weight of that statement. It also strengthens the right of a judge to take appropriate actions if non-classified evidence is not sufficient to sustain a conviction.
Section 10 replaces the "Court of Military Commission Review" with the "United States Court of Appeals for the Armed Forces," for which established statutory bases of appeal to the Supreme Court already exist.
Section 11 eliminates Sec. 950g(c), which limits the scope of review of military commissions' actions. (We'll come to this section again, below.) It also changes this language
`(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
by taking out the "notwithstanding" language I've emphasized above and allowing these habeas corpus provisions to serve as additional exceptions.
Finally, subsection (c), entitled Termination of Superseded Authority for Review of CSRTS, eliminates Section 1005(e)(2)-(4) of the Detainee Treatment Act of 2005, which are as follows:
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW- Review under this paragraph--
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
(4) RESPONDENT- The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.
Section 12 reinstates treaties (such as the Geneva Conventions) as a source of rights for claims against the government, including habeas corpus.
Section 13 deals with treaty obligations. Among other things, it takes away the President's unilateral power to interpret the Geneva Conventions. Do you doubt that the MCA "acknowledged" that power? Take a look at the current law:
(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions
compared to the proposed replaced for the boldfaced language
the President has the authority, subject to congressional oversight and judicial review
which is much nicer. It also establishes Denial of Trial Rights; Cruel, Inhuman, or Degrading Treatment or Punishment; and Certain Other Violations of Common Article 3 [of Geneva] as war crimes under U.S. Law.
Section 14 reverses the jurisdiction stripping leanguage that the MCA inserted into 2241 of title 28; the Leahy-Specter bill described in Chapter 6 above does the same thing.
Finally, section 15 provides for expedited review of the constitutionality of the MCA.
8. Implementing the MCA with the Manual for Military Commissions
This may be a surprise for many non-attorneys, but a federal statute is not what actually guides the Executive Branch in enforcement of a law. Rather, given a law, the Executive Agency (such as the Department of Defense) promulgates regulations; these are what actually get enforced. This link following will take you to the Manual for Military Commissions, which Defense Secretary Robert Gates presents as follows:
This Manual is the product of a tremendous interagency effort. Principally military judge advocates and attorneys from the Departments of Defense and Justice, using the Manual for Courts-Martial as a guide, undertook the initial drafting. Drafts were then coordinated with other relevant agencies to ensure that specific rules and procedures reflect careful consideration of our nation’s intelligence activities, as called for in the MCA. The overriding considerations reflected in the Manual for Military Commissions are fairness and fidelity to the Military Commissions Act of 2006. It is intended to ensure that alien unlawful enemy combatants who are suspected of war crimes and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people. This Manual will have an historic impact for our military and our country.
[Update: See smintheus's take on the manual from the week it was released here.]
In looking through the Manual, you can see the pride of authorship and fine workmanship throughout. This is a complete and conscientious effort of many attorneys to create something significant, and the care put into the effort is evident on every page. I don't disparage the process or the effort that went into it. Its significance must have been apparent to the authors. They were creating an entirely new Judiciary within the Department of Defense, with its own rules and constraints, that would be subject to almost no effective appellate review. That must have been heady stuff. Immersed in the middle of such an amazingly complicated and consequential intellectual project, it must have been easy for the team of authors to lose sight of the true horror underlying their creation. You can build something intricate and formidable on a foundation of false assumptions. Start with "the accused have no right to habeas corpus" and who knows where you might land? Who knows where we all might land?