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'All the Laws But One': Parsing the Military Commissions Bill

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the overall theme of the "compromise" military commissions bill seems to be the highly-problematic creation of a unique legal regime for a specific group of human beings intentionally cut off from all other domestic and international legal processes...

In this essay I offer an annotated review of the compromise version [PDF] of the Military Commissions Act of 2006 released late last week. My focus, however, is not on the sections that have so far been the subject of great discussion (classified information, common article 3, habeas corpus, offenses, etc.) but rather on what the compromise drafters are trying to do overall.

It appears that what is going on here is broader than what I have seen described. The compromise drafters appear to be decoupling these military commissions from international law, from domestic courts-martial, from other types of traditional military commissions, from any other law. These alien unlawful enemy combatants, these human beings, are in fact being decoupled from "all the laws but one," in the words of President Lincoln. The power of this effort should not be underestimated because as the lone superpower, the act does no less than push out to the world a state practice that would bring us back to pre-Geneva Convention standards for these people, worthy of only "special process".

From this view, these individuals have committed such heinous crimes that their process and punishment should be in a carefully controlled hermetically sealed environment that should not contaminate any other procedures that might impact more "deserving" characters. In the 18 sections below I examine the provisions that struck me that - taken as a whole - give us the outline (if we wish to look) of this "special process". We must remember that this special process is being created using all the ordinary words we have seen before. That is in one sense the genius of this effort. By carefully pulling together points strewn in many places including Hamdan v. Rumsfeld, words that are familiar are able to create a unfamiliar "special process".

For this special process, this group of human beings is segregated from the rest of mankind. They are segregated and by that segregation they are declared a different type of human being. Based on the responses of Republicans and Democrats, the American Congress, the President and by extension all the American people are willing to have these people declared as different. Moreover, the United States Government is willing to have these rules applied to aliens and in that sense is making a statement to all countries who might seek to invoke diplomatic protection for these non-Americans. Those countries must now consider ("are you with us or against us?") whether their countrymen are truly a different type of human being such that they will acquiesce in the American determination of segregation.

This, I would suggest, is the essence of the decision that is going to be made this week by this Congress on this legislation. Is America going to declare certain human beings beyond "all the laws but one" depriving them of common levels of human dignity? This type of separation resonates in American history at many points - in the Constitution in its treatment of slaves, in the reservations for Native Americans, in the exclusion of Asians, in the status of women. It resonates in other countries' histories also, such as in the Black Codes in France, the treatment of Algerians by the French and the laws for the overseas territories, the time of apartheid in South Africa, and the Nuremberg Laws in Nazi Germany. These are only some examples and others can think of more ancient historical references (such as who was a citizen of Athens in the days of its empire).

It points a question mark at the Universal Declaration of Human Rights and the rest of the International Bill of Rights. We are asked to think that this might only be for the current "difficulties" but the legislation does not have any sunset provision. A permanent track is created and any Congressperson or Senator who might seek to amend it in the future is likely to be immediately excoriated for being "soft on terror". Much power is centered in the President and the unitary executive in the implementation of the process with extremely limited judicial review.

This is what bothers me greatly. For on every occasion I can remember where this kind of special process occurs there is a person who stands up in front of the all powerful in that process and asserts his human dignity. A person like David Wainapel, the late husband of a late friend who challenged a Nazi camp commander in the center of his concentration camp. David Wainapel was considered by that special process as a non-human, but David asserted his humanity. I suspect that these alien unlawful enemy combatants and their lawyers will assert their humanity in front of this special process and the question will be whether we are capable of seeing that humanity (which is to see the evil of which we are each capable for those of them who are guilty) and whether we deny what we are capable of by denying their humanity. And by that denial, I fear we produce an abomination in our lust to end the presence of these persons. In a sense, their victory will have been complete in having us put such effort in creating such a special process for them. We give them their status by our treatment of them - the strangest aspect of all this.

Something deep in the American soul was stirred by the 9/11 events. Something that reminds me personally of what one sees in the eyes of lynch mobs in the old pictures. Except, now those standing are not exclusively white but are a rainbow coalition to ban certain aliens from the benefits of human dignity. There is a coldness to the hate. There is a precision to the process of destroying these persons. There is a determination and an exquisite intelligence with which this is done - through processes that are oh so democratic.

Those pushing this special process have so much power to sway us. All politicians are afraid if they stand against this that millions of dollars will come raining down on them from "the other side" (Republican or Democrat) for being "soft on terror". Persons of great stature have bought into this compromise (McCain et al) giving psychic cover for those to vote for this language. The rest of the world could make an outcry but one feels that the efforts so far are perfunctory - half-hearted - maybe because the rest of the world wants this special process to develop that they can apply to their special group.

It might be possible for some lone Senator or some lone Congressperson to stand up and say "This is too much for mankind. We have fought too long to not create these kinds of special processes." We await that champion of human dignity in all its frailness. My fear is that there is no one.

Below is my analysis by section of the 94 pages of the latest draft of the Military Commissions Act of 2006. Initial page references are to the pages in that draft. The titles offered in association with the Roman numerals are my own.

I. Humans covered

(pages 5-6) Sec 948(a), US Code Title 10, Subtitle A, Chapter 47A


A. Compromise proposed language

"(3) Lawful Enemy Combatant: The term 'lawful enemy combatant' means an individual who is -

"(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war, or

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

(4) Unlawful Enemy Combatant.-The term "unlawful enemy combatant" means an individual engaged in hostilities against the United States who is not a lawful enemy combatant."

Comment: The definition of Lawful Enemy Combatant diverges substantially from the Geneva Convention III Article 4 (for example, "regular forces" vs "armed forces") definitions for a Prisoner of War, thus restricting the domestic law position as to the applicability of the Geneva Convention to covered groups. The effect is to return to a pre-Geneva Conventions standard of the kind described by Justice Thomas in his dissent in Hamdan, and implicitly the harsh treatment accorded such persons pre-1949.

II. Relation to the Uniform Code of Military Justice

(pages 6-7) Section 948(b) generally

(b) Construction of Provisions.- The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this titles does not by its terms, apply to trial by military commission except as specifically provided therein or in this chapter, and many of the provisions of chapter 47 of the title are by their terms inapplicable to military commissions. The judicial construction and application of chapter 47 of this title is therefore not binding on military commissions established under this chapter."

Comment: The language appears to try to be limiting the effect of the Section 836(a) and (b) language as interpreted in Hamdan on subjective practicability and objective uniformity by reducing reference to the rest of the Uniform Code of Military Justice (See Section XIV below). Some specific exclusions 810 (speedy trial), 831(a)(b) and (d) (compulsory self-incrimination), and 832 (pretrial investigation) are made.

III. Decoupling alien unlawful enemy combatant military commissions from courts-martial

(page 8) Section 948(c)

"TREATMENT OF RULINGS AND PRECEDENTS.- The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under this chapter."

Comment: This next section makes all the acts in these military commissions inadmissible in court-martials. Thus, if there is proof of extremely harsh treatment in the military commission and findings are made, those are excluded from court-martial proceeding. Similarly every procedural determination would be disconnected from courts-martial. The goal appears to be to avoid "contamination" of the court-martial process by the actions in these military commissions and to create this hermetically sealed separate track for alien unlawful enemy combatants. Without that link, these military commissions can evolve in a manner that will likely work against the defendant. If there was no disconnection like this, then those making decisions might be concerned about the effect of decisions on American military in courts-martial. That structural constraint is removed by this language. This leaves a great risk of procedures evolving away from the experience of the past 50 years under the UCMJ toward what might be called "kangaroo courts".

IV. Common Article 3 compliance

(pages 7-8) Section 948(b)

(d) Status of Military Commission Under Common Article 3.- A military commission established under this chapter is a regularly constituted court, affording all the necessary 'judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.

Comment: This section asserts that military commissions meet the international standard of Common Article 3. Whether in fact these military commissions do meet that international standard will be a question for possible subsequent review by the Supreme Court and/or international tribunals. While not redefining Common Article 3 per se, this language is a domestic law push at Common Article 3 saying the U.S. foreign relations law understanding of what is needed under Common Article 3 in this area will control. One difficulty is the extent that what is permitted in this law violates Common Article 3 in terms of detainee treatment, would effect significantly the actual "regularly constituted" nature of these tribunals. If "regular" means only "properly" (Alito dissent in Hamdan) as opposed to meaning also "fairness" (implicit in the Kennedy concurrence in Hamdan and seems what Common Article 3 is expressing) these provisions may not meet the international standard of Common Article 3 (especially as they are decoupled from the Uniform Code of Military Justice procedure which seeks to meet that and possibly more).

V. Stripping of Geneva Convention rights in military commissions

(page 8) Section 948 (b)

(f) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.- No alien enemy unlawful combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a souce of rights at his trial by military commission.

Comment: Coupled with the language asserting this military commission meets the Common Article 3 standard (see IV), this language purports to deny the alien unlawful enemy combatant the ability to assert in the military commission Geneva Convention rights including the Common Article 3. So the disconnection from the court-martial track is further enhanced by trying to decouple the ability to argue of the alien unlawful enemy combatant from the Geneva Conventions. Without grounding in the Uniform Code of Military Justice or in the Geneva Conventions, the alien unlawful enemy combatant appears only able to assert grounds within this self-contained military commission structure here created - at least that seems to be the intent. It is a kind of isolation of the military commission from the rest of the statutory and international law structure which underpins Hamdan.

Moreover, given the difference between the definition of lawful enemy combatant and the Prisoner of War in the Geneva Conventions III earlier in the document (see Section I above), some of the persons in this hermetically sealed military commission structure are persons who would form some of the Prisoners of War under the Geneva Convention III Article 4 definitions which do not track with the definitions in this legislation. This suggests two types of treatment for Geneva Convention III Article 4-compliant individuals who one would expect would be in the same procedures.

VI. Two track issue again - persons

(page 8) Section 948c

Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.

Comment: The two track issue for Geneva Convention III Article 4 POW compliant persons arises again with Section 948c.

VII. Two track issue again - jurisdiction and how far back

(page 9) Section 948d. Jurisdiction of military commissions

(a) jurisdiction is over "alien unlawful enemy combatant before, on, or after September 11, 2001".

Comment: This means that military commissions might be applied for anytime in the past and anytime in the future. In the wrong hands, this could mean a very expansive use of military commission structures on aliens.

VIII. Two track issue again - lawful enemy combatants subject to court martial proceedings for offenses punishable under the military commission chapter

(page 9)"(b) Lawful Enemy Combatants - Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter."

Comment: Together with the problem of the Geneva Convention III Article 4 POW split between "alien unlawful enemy combatant" and "lawful enemy combatant" this language seems to say the offenses in the current chapter as opposed to the UCMJ will apply to lawful enemy combatants. To the extent - given the disconnection above - the offenses in this section also end up being disconnected from the Uniform Code of Military Justice there is an interpretation here that even lawful enemy combatants might be subject to courts-martial operating on punishments completely different from those of American soldiers (and others so defined) subject to the punishments in the Uniform Code of Military Justice. It is the use of the word "this" as opposed to "that" in the next to last sentence above that could create such a situation which would appear to be an anomaly.

The solution or further problem may be in the next section, to wit:

(page 9) "(c) Punishments.-A military commission under this chapter may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter, chapter 47 of this title, or the law of war."

Comment: One could imagine the President limiting to the military commissions certain types of punishments which would not be punishments that American soldiers would be subject to under the courts-martial jurisdiction but for which - based on the above language, the alien unlawful enemy combatants (in military commissions) AND lawful enemy combatants (in courts-martial) would be subject. This seems to be a carve out for "lawful enemy combatants" too. So really there are three tiers - alien unlawful enemy combatants in military commissions, American soldiers in the courts-martial under the Uniform Code of Military Justice, and "lawful enemy combatants" who can be switched in courts-martial to punishments triable in military commission OR courts-martial at the President's discretion. This seems to come back to that two-track issue and compliance with the standards of Geneva Convention III Common Article 3 and consistency in treatment of Geneva Convention III Article 4 defined POW status in any event.

IX. Detainee Treatment Act of 2005 - "shocks the conscience" two track integration

Section 948r. Compulsory self-incrimination prohibited; statements obtained by torture or other methods of coercion

(page 18)"(a) IN GENERAL.- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

Comment: This first language appears to be non-controversial. One must keep in mind that the silence of Moussaoui in questioning was used against him, notwithstanding his right against self-incrimination. So one does not know whether that tactic will be used in these military commissions to the same effect.

(page 18) (b) STATEMENTS OBTAINED BY TORTURE.-A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence the statement was made.

Comment: "statement obtained by use of torture" troubles me in the context of extraordinary renditions and torture by third parties. The persons in the military commission may assert that no torture was used and one can carefully make sure that there are sufficient filters so that the prosecutor in the military commission can state that in good faith. I am not sure if the "obtained by use" term will be interpreted to mean US persons or will include situations with foreign countries. One wonders also to what extent the state secrets type doctrine will be brought into play in this type of setting. It seems it would it be better to just say "obtained by torture" which has the nice effect of forcing us back to the statement receiving event rather than who used it (if - a big if here - one were trying to prevent statements obtained by torture from being introduced). It is curious that the "use of" language is not in the title. I suspect some wiggle room is being placed here due to the practices that have been used over the past several years. A reference to a definition of torture is not made here. There is a definition later in the punishments but this also seems to be a source of wiggle-room (See discussion at Section XIII).

(pages 18-19) (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 Detainee 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 circumstances render is reliable and possessing sufficient probative value; and
(2) the interest of justice would best be served by admission of the statement into evidence."

Comment: Pre-December 30, 2005 statements are subject to a very low standard for admissibility. The totality of circumstances standard leaves enormous discretion to the judge and the interest of justice standard also does that. Given the way politicians use the term "justice" in a manner that sounds like "death penalty" and that kind of indirect command influence being very likely as these military commissions go forward it seems probable that statements retrieved even under the most egregious types of pre-December 30, 2005 standards can be allowed in under this language. The separation of the military commissions from the courts-martial and the alien unlawful enemy combatant and lawful enemy combatant distinctions discussed above also make it very possible that divergent determinations on practices will be made in inconsistent manners across the cases. I question also whether this procedure meets the international standard of Common Article 3 given the wide discretion being admitted here. Clearly, a statement from "torture lite" that is accepted as a matter of domestic law under the "shocks the conscience" standard of the Detainee Treatment Act of 2005 but reprehensible as a matter of international law is very likely to be admitted. In this sense, as I proceed through this text I begin to feel that this is really becoming a kangaroo court. It also appears that this language is there to solve the problem created by the fanciful interpretation of early 2002 on detainee treatment, the presidential order of February 7, 2002 enshrining that approach, the acts of military and intelligence persons in contravention of international standards pre- December 30, 2005 (and pre-Hamdan) - including the actions in the secret prisons and extraordinary renditions. Arguably, the law that was applicable during the pre-Hamdan period 2001-2006 was Hamdan but that standard was intentionally subverted. The approach to detainee treatment taken ("new paradigm thinking") deviated from the 50 year approach of the United States. In particular the idea of the United States reservation to the Convention Against Torture and Cruel Inhuman and Degrading Treatment on "cruel inhuman and degrading treatment" resolving to a United States constitutional standard ("shocks the conscience"), BUT that being considered as geographically limiting the United States obligation to the United States (notwithstanding the testimony of persons who actually negotiated the treaty) is the kind of fanciful permissive interpretations that permitted low standards for seeking statements. And those low or no standards statements are being allowed in through this section of the act. This section is shameful and a disgrace to America. The next section makes the Detainee Treatment Act of 2005 standard apply also but it has its issues. See below.

(page 19) (d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE TREATMENT OF 2005.- A statement obtained on or after December 30, 2005 (the date of the enactment of the Detainee 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 circumstances renders it 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 violate the cruel, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution"

Comment: In contrast to the previous section, where no floor other than the discretion of the military judge was set, this section includes the "shocks the conscience" domestic law standard as the floor for evidence. Several difficulties are (1) whether the "shocks the conscience" standard meets international standards, (2) the different tracks for alien unlawful enemy combatants and lawful enemy combatants in the contexts of this act (the Geneva Convention definitional problem discussed above again), (3) the decoupling from other types of procedures, and (4) the hermetically sealed nature of these procedures suggests. Taken together, the standard used here may be evolved away from that used in other types of tribunals in a suspect manner.

X. Structuring of the procedure before the military judge

(pages 20-45) see the text

Comment: The military judge's role described appears to have a structural preference to protect classified information and sources, methods and activities even if that might cause unfairness. I believe many have commented on this and reference can be made to those writings (Marty Lederman at Balkinization in particular).

XI. Execution of confinement

A. Where one can be held

(Page 48) Section 949u. Execution of confinement
(a) IN GENERAL.-Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement -
"(1) in an place of confinement under the control of any of the armed forces; or
(2) in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use."

Comment: This language allows for the return of an individual to overseas settings not under the control of the United States. Thus secret prisons and sites of extraordinary rendition may be used as places of confinement.

B. What are the standards for being held?

(page 48)
(b) TREATMENT DURING CONFINEMENT BY OTHER THAN THE ARMED FORCES.-Persons confined under subsection (a)(2) in a penal or correctional institution not under the control of an armed force are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.

Comments: Given the prevalence of prison rape and racially segregated gangs in American prisons one wonders what the American standards noted are. On the other hand, the reference to "or place in which the institution is situated" seems to indicate that persons can be confined in places under standards that are local standards as opposed to American or international standards. This gives some leeway to choose "high standard" or "low standard" locations outside the United States as part of the confinement. This appears troubling in the context of the "extraordinary renditions" already practiced by the United States.

XII. Interlocutory Appeal by the United States

(page 52) Section 950d Appeal by the United States

(a) INTERLOCUTORY APPEAL.-(1) Except as provided in paragraph (2), in a trial by military commission under this chapter, the United States may take an interlocutory appeal to the Court of Military Commission Review under section 950f of this title of any order or ruling of the military judge that-
(A) terminates proceedings of the military commission with respect to a charge or specification;
(B) excludes evidence that is substantial proof of a fact material in the proceeding, or
(C) relates to a matter under subsection (c) (closure of proceedings), (d) (exclusion of accused from certain proceedings) or (e) (protection of classified information) of Section 949(d) of this title.
(2) The United States may not appeal under paragraph (1) an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge of specification.

Comment: Under (page 41) Section 949l. Voting and rulings on rulings it states in relevant part "...(2) Any ruling made by the military judge upon a question of law or an interlocutory question (other than the factual issue of mental responsibility of the accused) is conclusive and constitutes the ruling of the military commission. However, a military judge may change his ruling at any time during the trial." Thus, from the accused's point of view there is no review until the end of the proceeding. From the point of the United States, if there is an unfavorable decision on excluding evidence, closure of proceedings, exclusion of accused, or protection of classified information, the military judge knows his/her decision may be appealed immediately. It seems obvious, this state of affairs creates a disequilibrium and structural pressure on the military judge to not make decisions unfavorable to the United States. The appeal of the United States is to the Court of Military Commission Review (Section 950(f)(c)) a court made up of military judges with the same qualifications as the military judge in the military commission and whose members are also appointed by the Secretary of Defense. The Court of Military Commission Review is only permitted to hear appeals from the defendant of a final decision. The Court of Military Commission Review's reviews are only with respect to matters of law. Given the types of matters that are in the law concerning protections of classified information, one senses that the United States has a substantial advantage in that the law requires the military judge to make sure significant protections are provided in these matter, and the interlocutory appeal processes to review those decisions is immediate, and the military judge is free to change a decision at any time. Under the pressure of a possible interlocutory appeal by the United States, one could see a military judge reversing a decision pursuant to the discretion given. This structure could be termed structural lawful (but questionable) command influence at least through indirect appointment control of the Secretary of Defense.

Further, cases in which review is of right by the United States Court of Appeals for the District of Columbia are those in which the detainee is sentenced to 10 years or more. So for cases where the sentence is less than ten years the matter is heard by the United States Court of Appeals for the District of Columbia under its discretion. To the extent that discretion is denied the final decision will be in the Court of Military Commission Review - Court subject to the control of the Secretary of the Defense. Appeal to the Supreme Court is only by cert. The references are back to Section 1005(e)(4)(f) of the Detainee Treatment Act of 2005 which also states as a matter of construction "(f) Construction- Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States." Thus, the sense is that cert will be hard to get as one would have to prove a detainee constitutional right and assert it, Geneva Convention grounds can not be asserted, and the focus of this review is on validity of the decision of the military commission rather than more broad attacks on the process.

XIII. Punishment clauses

Section 950 rr - Torture

(Page 69) "(a) OFFENSE.-Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
(b) SEVERE MENTAL PAIN OR SUFFERING DEFINED.-In this section, the term 'severe mental pain or suffering' has the meaning given that term in section 2340(2) of title 18."

The specific intent and definitional difficulties (Yoo/Bybee memo enshrined) have noted by others such as Jamie Mayerfield and Marty Lederman over at Balkinization. The key for me is how this relates back to the exclusion of evidence sections noted above. Much coercive pre-December 30, 2005 statements would be included if this is the test for what is torture. And as this definition appears later in the same legislation it is likely that this is the definition of torture that will be used. So a big hole for pre-Detainee Treatment Act of December 30, 2005 statements to come in at the discretion of the judge is provided by this definition read in conjunction with the prior section. Post-December 30, 2005 statements are only kept out by the minimal "shocks the conscience" domestic standard as opposed to an international standard. This appears troubling. It is also curious that conspiring to commit torture is not included in the definition while the conspiracy is foreseen in the "cruel or inhuman treatment" section.

General comment: Several persons have discussed the difficulties with these sections. One recent point noted in the New York Times ("Turning back the clock", New York Times, September 23, 2006, Editorials) the weakening of the international standard for rape. The offenses appear to be a further decoupling effort from any other law.

XIV. Amendments to other laws

(page 79) Comment: UCMJ Section 802 definitions of who are subject to courts-martial now include the lawful enemy combatants designated pursuant to the sections of this act. Because of the difference between that definition and that of POWs under the Geneva Convention III Article 4 one sees that two classes of Geneva Convention POWs are created by this act for reasons that I have found troubling in the sections above.

(page 79) Comment: The deletion of the words "by statute of laws of war" from UCMJ Section 821 removes the basis through which the Supreme Court brought in Common Article 3 and the Geneva Conventions in Hamdan. This deletion is a further example of the decoupling of these military commissions from international law and any other domestic law (courts-martial, other military commissions etc) for these persons described as "alien unlawful enemy combatants".

(Page 79) Comment: The addition of the words "(other than military commissions under chapter 47A of this title)" in UCMJ Section 836(a) removes the duty on the procedures in these military commissions that "may be prescribed by the President by regulations which shall, so far as he considers practicable, (to) apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." These alien unlawful enemy combatant military commissions are decoupled from any concern about showing why deviations from other procedures were considered practicable. In addition the exception has the effect of eliminating the requirement for uniformity with other procedures under Section 836(b) ("(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress."). The elimination of the President's practicability requirement and the uniformity standard removes two further sections that were crucial for the Supreme Court decision in Hamdan for their determinations about the adequacy of the procedures of the military commissions then before them. Truly, the decoupling from other law for this group is as complete as one could imagine.

XV. Stripping of habeas corpus

Comment: (page 81) Section 6 Habeas corpus under this bill has been discussed by many so I will not add anything here except to emphasize the decoupling of these procedures from all other procedures.

XVI. Treaty obligations exclusions

Comment: (page 83) Section 7 - TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS has been discussed by many but it should be emphasized that the Geneva Conventions are excluded from federal, state, and territory habeas or civil action or proceeding. The question is whether "proceeding" includes criminal proceedings in those courts. The act is not clear and a question of interpretation will arise. The lack of precision on that point might be understood as not precluding criminal proceedings.

XVII. Treaty obligations implemented

Comment: (page 83) Section 8 Implementation of Treaty Obligations creates the structure of (1) United States domestic law defined grave breaches that others have noted are restrictive as compared to the Geneva Conventions, (2) remaining breaches that are undefined and left to the interpretation of the President as sole arbiter, (3) a residual domestic standard of "shocks the conscience" that differs from Common Article 3 and (4) limitation of sources of law in interpretation to US sources (or rejection of foreign sources of law in interpretation of this statute to slip around the approaches of the Vienna Convention on the Law of Treaties). Many have talked about these sections already and I would refer you to them.

XVIII. Section 9 detention covered by review of decisions of Combatant Status Review Tribunals

(page 94) Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 (which states: "(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") is amended by striking "the Department of Defense at Guantanamo Bay, Cuba" and inserting "the United States".

Comment: This appears to be a means to avoid court review of the holding of aliens prior to a Combat Status Review Tribunals by others than the United States and thus the holding of persons by foreign countries, in secret prisons, etc. This change suggest possibly why the 14 top Al-Qaeda members are being hustled into Combat Status Review Tribunals: to create a filter for the alien unlawful enemy combatant military commissions and the courts as to what can be reviewed of what happened and according to what standard in the period these persons (and 14,000 others according to reports) were held outside of Guantanamo prior to a Combat Status Review Tribunal.


Postscript [September 26, 2006]

Revisions Expand, Broaden, and Harden the walls of the "special process"

New changes [PDF revised draft] to the bill have gone farther in hermetically sealing this procedure, expanding the potential persons subject to be alien unlawful enemy combatants, decoupling of all this from armed conflict, giving the United States more rights of interlocutory appeal unavailable to the accused and generally reinforcing the isolation of this special process from any other U.S. process.

The details noted are below.

I. Who - Enemies of the State

(Page 3 9/25 Version)''§ 948a. Definitions

3 ''In this chapter:


5 term 'unlawful enemy combatant' means—

6 ''(i) a person who has engaged in hos7

tilities or who has purposefully and materially

8 supported hostilities against the United States

9 or its co-belligerents who is not a lawful enemy

10 combatant (including a person who is part of

11 the Taliban, al Qaeda, or associated forces); or

12 ''(ii) a person who, before, on, or after the

13 date of the enactment of the Military Commis14

sions Act of 2006, has been determined to be

15 an unlawful enemy combatant by a Combatant

16 Status Review Tribunal or another competent

17 tribunal established under the authority of the

18 President or the Secretary of Defense.

19 ''(B) CO-BELLIGERENT.—In this paragraph,

20 the term 'co-belligerent', with respect to the United

21 States, means any State or armed force joining and

1 directly engaged with the United States in hostilities

2 or directly supporting hostilities against a common

3 enemy.

Comment: The significant expansion of who can be an unlawful enemy combatant is the most significant development. Under the broad two-part definition above, if so designated by the government, anyone is an unlawful enemy combatant. Thus, the careful distinctions between POWs and non-POWs and Civilians etc in the four Geneva Conventions are obliterated. Taken with the definition of who is a lawful enemy combatant which I describe aboved as being different from the Geneva Convention III Article 4 definitions for POW's, we have a fundamental revision of Geneva law that seems even broader than the pre-Geneva 1949 environment. Thus, if the state says you are an unlawful enemy combatant you are one - we move from POW's to unlawful enemy combatants to enemies of the state.

II. Presidential authority broadened

(page 5 9/25 version) 948b. Military commissions generally


18 UNDER THIS CHAPTER.—The President is authorized to

19 establish military commissions under this chapter for of20

fenses triable by military commission as provided in this

21 chapter.

Comment: The authority of the President to establish military commission is now stated in very broad terms deleting references to "the trial of unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses" in the prior version. Coupled with the broad definition or unlawful enemy combatant, one senses that the bills drafters wanted to give the President the broadest Youngstown authority for these commissions.

At pages 5 and 6 of the new version (sections 948b. (c) and (d)), language is deleted to eliminate reference to any language in the UCMJ.in the (c) Constuction of Provisions section. In (d), other provisions of Chapter 47 are made to apply under this chapter only to the extent provided by this chapter. This deletion and language further decouples the unlawful enemy combatant military commissions from the UCMJ as described above.

III. Geneva Convention exclusion broadened

(page 7 9/25 version) Section 948b.(g)


14 SOURCE OF RIGHTS.—No alien unlawful enemy combat15

ant subject to trial by military commission under this

16 chapter may invoke the Geneva Conventions as a source

17 of rights.

Comment: In the prior version it was explicit that the alien unlawful enemy combatant could could not invoke the Geneva Conventions in the military commission trial but there could have been an ambiguity about whether the Geneva Convention could be invoked other places. This slight change of this section appears to make this exclusion as broad as possible.

IV. Jurisdiction - two tracks for alien unlawful enemy combatants and lawful enemy combatants (pages 7- 8) Section 948d.

Jurisdiction of these military commissions is kept only to offenses made punishable by this chapter or the law of war - removing reference to the UCMJ. Lawful enemy combatants can be prosecuted in courts-martial for offenses here but the punishments may be different there - thus keeping the two tracks described above.

V. New provision on the dispositive nature of the status determination

(Page 8) Section 948c.(c)


BATANT STATUS DISPOSITIVE.—A finding, whether be12

fore, on, or after the date of the enactment of the Military

13 Commissions Act of 2006, by a Combatant Status Review

14 Tribunal or another competent tribunal established under

15 the authority of the President or the Secretary of Defense

16 that a person is an unlawful enemy combatant is disposi17

tive for purposes of jurisdiction for trial by military com18

mission under this chapter.

Comments: This provision anchors the jurisdiction of the military commissions in determinations for which there is little or no review. Once considered an unlawful enemy combatant, one is truly alone and made to have limited recourse before the end of the proceeding. And the powers of the Secretary of Defense are enhanced as the punishments are no longer to be determined by the President in Section (d) on that same page 8.

VI. Who can serve on military commissions

At page 9, Section 948i.(a) states that only active duty armed forces (as opposed to reserves in the earlier version) may serve on the military commissions. I am not sure of the import of this except that the control is obviously much more significant on active duty personnel as opposed to reserve personnel.

VII. Rules of evidence

Pages 19 and 20 Section 949a. Rules (a)

''§ 949a. Rules


trial, trial, and post-trial procedures, including elements

1 and modes of proof, for cases triable by military commis2

sion under this chapter may be prescribed by the Secretary

3 of Defense, in consultation with the Attorney General.

4 Such procedures shall, so far as the Secretary considers

5 practicable or consistent with military or intelligence ac6

tivities, apply the principles of law and the rules of evi7

dence in trial by general courts-martial. Such procedures

8 and rules of evidence may not be contrary to or incon9

sistent with this chapter.

Comment: The Attorney General is inserted in the process of determination of the procedures. Moreover, the priority of military and intelligence activities is greatly emphasized in the language.

VIII. Number of members of military commissions in non-capital cases

Page 43 (Section 949m (b)(2)), the number of members of the military commission in non-capital cases is increased from 5 to 9.

IX. Enhanced role of the Court of Military Commission Review

Page 51 (section 950c.(a)), in what appears to be a new section an automatic review of any finding of guilty is provided by the Court of Military Commission Review.

X. Further enhancement of one way appeal by the United States

Page 52 (Section 950d. Appeal by the United States) - the United States alone has certain rights to make a few appeals on certain military commission order or rulings to the Court of Military Review. If the Court of Military Review enters an adverse ruling, a new section grants the right to petition for review of that decision by the United States Court of Appeals for the District of Columbia (whose review will be at the Court of Appeals' discretion).

XI. Scope of Review of the United States Court of Appeals

Page 57 Section 950g.(e)

''(c) SCOPE OF REVIEW.—The jurisdiction of the

10 Court of Appeals on an appeal under subsection (a) shall

11 be limited to the consideration of—

12 ''(1) whether the final decision was consistent

13 with the standards and procedures specified in this

14 chapter; and

15 ''(2) to the extent applicable, the Constitution

16 and the laws of the United States.

Comment: The scope of review is limited and the chapter attempts to be very self-contained.

XII. (Page 64) Section 950v. Crimes triable by commission.

The deletion of the section "(c) Common Circumstances.-An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict" (page 62 Section 950aa.of the 9/22 version) is significant. The offenses are decoupled from armed conflicts. Given the broad definition of who is an unlawful enemy combatant in the new version - aliens everywhere can find themselves caught in this system whether or not they are near armed conflict.

At page 70 (Section (12)), reference to conspiracy or attempts is deleted in the cruel or inhuman treatment offense. At page 76 (Section (22)), Sexual Assault or Abuse is included in this section as it is in the War Crimes Act section later in the new version.

At pages 80 and 81 (Section 4 (a)(2) and (3), the exclusion of the applicability of Section 821 and 836(a) and (b) of the UCMJ is made even more explicit for the avoidance of any risk that a Hamdan kind of analysis might be done again through these provisions to bring in the Geneva Conventions.

XIII. New habeas language

Page 93 Section 7 Habeas Corpus Matters

''(e)(1) No court, justice, or judge shall have jurisdic

13 tion to hear or consider an application for a writ of habeas

14 corpus filed by or on behalf of an alien detained by the

15 United States who has been determined by the United

16 States to have been properly detained as an enemy com

17 batant or is awaiting such determination
. (my underlining)

Comment: This language is present in both the 2241 U.S.C. amendments and the Detainee Treatment Act amendments. This new language really seems to leave the unlawful enemy combatant at the absolute mercy of the determinations of these military commission and related processes.

Benjamin Davis is a professor at the University of Toledo College of Law

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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