JURIST Special Guest Columnist Kathleen Duignan, Executive Director of the National Institute of Military Justice, says that the Military Commissions Act of 2006 again puts US JAG officers in the awkward position of litigating the shortfalls of a military legal process that none of us would like to see our own service members tried under, and warrants amendment in the new Congress…

After the Supreme Court decided Hamdan v. Rumsfeld in June 2006, academics, law of war experts, military justice practitioners, and everyday concerned citizens were eagerly awaiting Congressional action to cure the deficiencies in the previous system or sanction the use of courts-martial or civilian courts to try the fraction of those detained at Guantánamo awaiting trial. Instead, Congress acted politically. Instead of carefully deliberating and taking as much time as it needed to get the system right, Congress hastily created and passed The Military Commissions Act of 2006. Now that this bill has been signed by the President, the United States will once again breathe life back into another new system of justice created for the sole purpose of trying 10 men who were charged under the original commission system, as well as 14 high-value detainees recently transferred to Guantánamo immediately before Congress was pressed into action, and perhaps a grand total of 80 detainees altogether.

An anonymous comment posted by a concerned reader of Professor Kermit Roosevelt’s fine op-ed piece entitled Why Guantanamo, published in JURIST on October 5, 2006, noted that “the U.S. deliberately selected Guantanamo as a prison site to evade U.S. law itself. . . and this clear intent needs to be kept in mind at all times.” This is an insightful way to view the issue. Ironically, instead of using time-tested processes that have worked in the past, there was a compelling need to rush into creating a new system that seemed designed solely for the purpose of offering apparent justice, but in reality has to date offered nothing more than a bare minimum of process. Intent seems to be a good measure to evaluate our next steps in addressing the unresolved issue of how to apply the rule of law to alleged terrorists and co-conspirators worthy of facing criminal sanctions.

Department of Defense Directive, 5525.1, “Status of Forces Policy and Information,” sets minimum standards of justice for entry into Status of Forces Agreements with other nations and establishes DoD policy and procedures for trial of United States military personnel abroad by foreign courts and their treatment in foreign prisons. Enclosure 2 of that directive lists fair trial guarantees the United States uses to evaluate other justice systems for fairness. Some of the listed guarantees we look for are that the criminal statute violated must set forth specific and definite standards of guilt; the accused shall not be prosecuted under an ex post facto law; the accused is entitled to be present at the trial; the accused is entitled to be confronted with hostile witnesses; the accused is entitled to have compulsory process for obtaining favorable witnesses; the use of evidence obtained through illegal means is prohibited; the accused shall be protected from the use of a confession obtained by torture, threats, violence, or the exertion of any improper influence; the accused is entitled to be tried without unreasonable (prejudicial) delay; the accused is entitled to be tried by an impartial court; and the accused is entitled to a public trial.” This list is not exhaustive, but is used to guide the United States on whether our service personnel are subject to foreign jurisdiction. The Golden Rule that we all learned as children would necessarily support the fact that we extend the same treatment to all those we detain and try in our systems, regardless of their alleged crimes, just as we expect in return. Justice Brennan supports this notion of mutuality in his dissenting opinion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Brennan, J., dissenting) “If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them…Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights.” Verdugo-Urquidez, 494 U.S. at 284. “Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere.” Verdugo-Urquidez, 494 U.S. at 285.

If these are the minimum standards we are willing to accept from other countries seeking to pass judgment on our service-members, does it not seem logical that we should then offer the same considerations in return to convince other nations that we are indeed a nation of laws and not of ideologues? Otherwise, it begs the question of what form of democracy we are fighting to preserve and whether we are a nation that upholds the rule of law ourselves.

Legislators and staff labored many long hours considering, drafting, and eventually passing the Military Commissions Act of 2006, but the question should not be what it provides, but why it is necessary. Is it true that we now do not trust our established system of justice to hold accountable those pending trial at Guantánamo Bay? What was the intent in spending valuable Congressional resources and tax dollars (not including the $125 million that could potentially be spent to build courtroom facilities in Guantánamo Bay) to create a new system from scratch, rather than either using the civilian courts that have been used to try the World Trade Center bombers of 1993 or our domestic terrorists, like Timothy McVeigh for his acts in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City? Another option would have been to mandate the use of courts-martial as would be used under the Geneva Conventions in a traditional conflict with prisoners of war. What differentiates these particular defendants in Guantánamo, especially the low-level footmen, from other more culpable terrorists that we have already successfully prosecuted in civilian courts? The conclusion the rest of the world sees is that the United States is not interested in true justice, but rather the appearance of justice. This seems to be a true loss for the United States in its ability to wield moral authority, as well as for those who defend the rule of law in the United States, and especially for those who are proud to wear the uniform of our country.

If we are to apply the war metaphor for our current conflict, then it needs to be applied consistently. If terrorism is not merely criminal conduct, but has now risen to the definition of “war,” then the laws of war need to be applied consistently. This is now a “war” in which we have few allies and for which no end to hostilities is in sight. If alleged terrorists (which might not necessarily apply to all those held at Guantánamo) are to be tried, there is no reason they cannot be tried as other criminal terrorists in existing federal courts, like Timothy McVeigh in the Oklahoma City bombing in 1995 or Sheikh Omar Abdul-Rahman and nine others for the first attempt to blow up the World Trade Center in 1993.
Or, if we stick with the war metaphor, then the prisoners are entitled to face general courts-martial under the laws of war and the Uniform Code of Military Justice. Therefore, why have we hastily re-created another military commissions system to try these individuals five years after their initial capture? The observant reader who commented on the earlier article got the answer right. It all boils down to intent. And the question is whether that intent is to paint a thin veneer of respectability on a new substandard system, or to do justice to those worthy of punishment while upholding a nation of laws, avoid complete alienation of our allies, and ensure continued protection by the Geneva Conventions for our men and women serving overseas.

The National Institute of Military Justice (NIMJ) endeavored to provide sound recommendations to those in Congress who asked our advice. Our proposed legislation would have made slight modifications to the procedures for general courts-martial that do not affect substantive fairness, but allow for deviation where good cause has been shown because the rules as they exist would be “impracticable.” This standard is taken straight from Article 36 (b) of the Uniform Code of Military Justice. Unfortunately, Congress did not choose to start with general courts-martial rules as the norm and deviate only when using those rules would be “impracticable.” Instead, the only item Congress seems to have adopted from NIMJ’s proposal was the name of the act, “The Military Commissions Act of 2006.”

In an election year, development of a carefully crafted system fell by the wayside, leaving all of us to begin again — years after the initial processes started — with a repackaged version of the original commissions system that may not pass judicial muster. To be sure, the Act incorporated some of the piecemeal improvements that have occurred during the last five years of this process, such as the right of appeal, the ability to attend one’s own trial, the explicit exclusion of evidence derived by torture, and the right to self-representation.

But any improvements are overshadowed by Congress’ express desire to strip any ability to enforce these rights from detainees by prohibiting them access to federal courts. And if the original Act stands, any meaningful check on abuses will have to wait for a time where the individual tried is convicted, appeals are filed with the interim Court of Military Commissions, which still falls under the control of the Department of Defense, and only then can the accused petition the Circuit Court of Appeals for the District of Columbia. By the time an individual accused reaches this point, he will have most likely already spent a decade incarcerated. And only at this point will he be able to challenge his right to be tried in a system that appears to be pre-disposed toward conviction.

Following the election, there have been several proposed amendments to the Military Commissions Act of 2006 introduced into Congress. One that has received considerable attention was introduced by Senator Christopher J. Dodd of Connecticut. His amendment would restore the ability to challenge detention using the rights available under habeas corpus as well as to send appeals to the Court of Appeals for the Armed Forces, an already existing civilian court that is expert in military criminal matters. This is a step in the right direction.

Otherwise, if the system is implemented as it exists in the current Military Commissions Act, we will have once again missed an opportunity to get it right. And our military JAG officers will once again be asked to make a half-baked system work. If nothing else, our JAG officers will get plenty of practice in litigating the shortfalls of a system that none of us would like to see our service members tried under, and they may once again be seated at counsel’s table in the Supreme Court of the United States. As Humphrey Bogart proverbially said in a famous movie set in war-torn Europe and Morocco, “Play it again, Sam.”

Kathleen A. Duignan is the Executive Director of the National Institute of Military Justice (NIMJ) — a District of Columbia non-profit organization organized in 1991 to advance the fair administration of military justice and to foster improved public understanding of the military justice system. NIMJ’s boards of directors and advisors include law professors, private practitioners, and other experts — none of whom are on active duty, but most of whom have served as military lawyers, several as flag and general officers. NIMJ recently affiliated with the Washington College of Law, American University. The opinions expressed herein are the author’s own and do not represent those of NIMJ or of American University. E-mail any comments to her at duignan@wcl.american.edu and visit NIMJ’s websites at www.nimj.org and http://www.wcl.american.edu/nimj.
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