The Military Commissions Act

2007-07-05T12:15:00.000-07:00

JURIST Guest Annotator David Glazier is a law professor at Loyola Law School Los Angeles, where he teaches Foreign Relations Law and the Law of War....

General Winfield Scott created the military commission in 1847 to maintain order among U.S. forces campaigning in Mexico. Convinced that the constitutional authority involved belonged to the legislative branch, Scott informed the Secretary of War and Attorney General that he would implement the commissions unilaterally “until Congress could be stimulated to act.”

In the absence of definitive statutory guidance, Scott and his successors during the Civil War and Philippine Insurrection conducted trials closely conforming to court-martial procedure, including faithful adherence to the same rules of evidence. This changed only during World War II after President Roosevelt authorized a military commission he established to try eight Nazi saboteurs in 1942 to diverge from courts-martial rules, including authority to admit any evidence with probative value to a reasonable man. Although Roosevelt modified his order later in the war to call for closer conformance to court-martial procedure, President Bush based his own 2001 military order resurrecting the tribunal almost verbatim on FDR’s original superseded directive. (Military commission history is detailed by this author in “Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5 (2005)).

After 159 years and the trials of more than 10,000 individuals, the Supreme Court’s Hamdan v. Rumsfeld decision finally stimulated Congress to act. The resulting Military Commissions Act of 2006 (MCA) was one of the last achievements of the Republican congressional majority.

Public focus during MCA consideration centered on efforts by Senators Graham, Levin, McCain, and Warner to end the specific commission practices to which the Court objected, such as the ability to exclude the defendant from his own trial and to convict on the basis of evidence he wasn’t allowed to see. Although the MCA corrects these flaws, the Act’s reauthorization of military commission trials has nevertheless been portrayed by administration champions as a smackdown to the judiciary and reaffirmation of broad executive discretion. John Yoo termed it “a stinging rebuke to the Supreme Court . . . . which restores to the president command over the management of the war on terror.” (John Yoo, “Sending a Message,” Wall Street Journal.com, Oct. 19, 2006). Even MCA critics generally seem to agree. Amnesty International warned that:

By passing the Military Commissions Act, the United States Congress has, in effect, given its stamp of approval to human rights violations committed by the USA in the "war on terror". This legislation leaves the USA squarely on the wrong side of international law, and has turned bad executive policy into bad domestic law. (Amnesty International, “Rubber Stamping Violations in the ‘War on Terror,’” Sep. 29, 2006)

The reality is more complex, particularly since the statute does much more than just regulate commission procedure. On one hand the MCA provides statutory trial mandates that restore much of the original commonality between military commission and court-martial procedure. A trial conducted under the MCA will look far different, and have the potential to be much fairer, than under the administration’s initial rules. In this sense the Act provides a substantial rebuke to the President. But in the hands of a military judge lacking the highest sense of judicial integrity and impartiality, the rules of evidence codified by the Act can permit the introduction of testimony extorted through coercive interrogation practices as well introduction of hearsay of dubious reliability. So even the MCA’s statutory mandate still falls short of ensuring fair trials. Another problem is that some of the crimes chargeable under the MCA fail to state violations of the law of war. Military jurisdiction over such offenses could thus be unlawful, potentially making participation in such trials a war crime in itself.

Other matters included in the MCA are a strict limit on habeas challenges by detainees, a retroactive rewrite of the War Crimes Act of 1996 to narrow the scope of punishable Geneva Convention Common Article 3 violations, and a clear statement that the Conventions do not provide a legal cause of action. The gratuitous language used in several areas was likely intended as much as symbolic pokes in the eye to internationalists as meaningful law. An informed judgment about the MCA’s impact requires understanding both the full scope of the legislation and its relationship to existing law and practice.

Specific Provisions of the MCA

The MCA is divided into ten sections, with the bulk of the bill contained in Section. 3, “Military Commissions.” The following analysis follows the organization of the final enactment:

Section 1 provides the short title, “Military Commissions Act of 2006” and a table of contents identifying the ten sections.

Section 2 declares that authority granted the President to establish military commissions in Section 3 does not limit his authority to establish military commissions in areas under martial law or in occupied territories.

Comment: The latter language should not be controversial – administering territories under military occupation seems a core commander-in-chief function regulated by the law of war (i.e., 1907 Hague Convention IV respecting War on Land – recognized at Nuremberg as customary international law -- and the universally ratified Fourth Geneva Convention of 1949). The mention of martial law should be of more concern. President James Madison had his Secretary of War write to Andrew Jackson in 1815 that there was no constitutional authority for declaring martial law. The only two mentions of martial law in current U.S. law authorize territorial governors to declare it, not the President. (See 48 U.S.C. 1422 (Guam) and 1591 (Virgin Islands). A future President could potentially cite this MCA language as implicit congressional authorization for a declaration of martial law, just as passing mention of military commissions in two sections of the 1916/1920 Articles of War was held by the Supreme Court in ex parte Quirin to constitute congressional sanction of the Nazi saboteur’s trial.

Section 3 provides detailed guidance regulating military commission procedure, adding a new Chapter 47A to Title 10, U.S. Code, immediately following the Uniform Code of Military Justice. These provisions are identified in this analysis by their ultimate Title 10 subchapter and section numbers. In the interest of brevity, minor or non-controversial, provisions are generally omitted.

Subchapter I – General Provisions

§ 948a. establishes definitions used throughout the MCA. The most important of these is “unlawful enemy combatant,” which is either:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who . . . has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal (CSRT) or another competent tribunal established by authority of the President or Secretary of Defense.

“Lawful enemy combatant” is then defined using language taken from Article 4 of the Third Geneva Convention of 1949 governing combatants qualifying for Prisoner of War (POW) status.

Comments: By adopting “purposefully” as the mens rea for providing material support, the MCA would preclude, say, persons innocently donating to Muslim charities that are covertly aiding al Qaeda being subjected to military trial. But on the flip side, the definition of “material support” is still extremely broad and potentially subject to abuse. Furthermore, there is no clear support in the law of war for holding that providing support to an enemy qualifies as a war crime unless the individual owes some duty of allegiance, such as a resident in occupied territory who has an implicit duty to comply with directives of the occupying power. The second criteria, determination by a CSRT, is also problematic given emerging accounts of how unreliable these classifications have been, often based on flimsy evidence, or failing to consider exculpatory information. The option to use other tribunals could open the door for a process even less protective than the CSRT.

“Lawful enemy combatant” is peculiarly defined using Geneva Convention language, including “State party,” which seems meaningless when removed from the treaty context.

§ 948b establishes foundational guidance, most importantly authorizing the President to use military commissions for the purposes set forth in the act. It declares that while the MCA is based on the UCMJ, the latter only applies where so provided in the MCA. The UCMJ’s speedy trial, self-incrimination, and pretrial investigation provisions are then specifically declared inapplicable. § 948b also bars introduction of military commission holdings into courts-martial; declares military commissions to be “regularly constituted courts” meeting the requirements of Common Article 3 (CA3) of the 1949 Geneva Conventions, and denies those treaties as a source of rights to potential commission defendants.

Comments: The delegation of authority to the President is a subtle, but significant, reaffirmation that the constitutional authority underlying these trials belongs to Congress. The provisions denying UCMJ applicability evidence the MCA’s hasty drafting. After stating that the UCMJ does not apply, the identification of specific non-applicable articles is redundant, and could open the door to challenges that UCMJ provisions not expressly excepted by the MCA should be applicable after all. The exclusion of commission holdings from courts-martial is troubling because the Guantanamo tribunals will logically be called upon to make decisions on law of war questions that have not been considered by American tribunals since World War II. IF these trials are fairly and thoughtfully conducted, decisions they reach could be of value in future courts-martial trying law of war violations. (Courts-martial can try any law of war violation, and often will be the only tribunal with authority to try U.S. service personnel or actual POWs). Statutory exclusion of commission precedents suggests an upfront assumption that these will be second-class tribunals, in which case the subsequent declaration that they meet CA3 standards seems contradictory. In any event, ascertaining compliance with law, whether statute or treaty, seems a core judicial function, not something to be accomplished by congressional fiat. The fact that Congress takes the trouble to declare that the commissions meet CA3 standards can at least be logically construed as legislative reaffirmation that it is not intending the MCA to be interpreted as superseding the Conventions under the last in time rule.

§ 948c limits military commissions to trying alien unlawful enemy combatants.

Comment: While concern has been expressed that the MCA’s definition of unlawful enemy combatant authorizes their indefinite detention, the only explicit authorization in the bill is this authority to try them by military commission.

§ 948d establishes military commission jurisdiction as including offenses made punishable by the MCA or the law of war “before, on, or after September 11, 2001.

Comment: The only war crime generally recognized as capable of being committed before conflict begins are crimes against peace. These commissions are thus logically limited to trying crimes that date from the start of hostilities, yet the government has never definitively established an actual commencement date for this war. Absent a clearly defined early start date, jurisdiction over any offense committed before 9/11/2001 seems problematic.

Subchapter II – Composition of Military Commissions

§ 948j requires a military judge be detailed to preside over each military commission. (§ 949l gives the judge ruling authority equivalent to courts-martial judges).

Comment: This is a significant improvement from the original commission structure which rolled back the clock to a WWII-era presiding officer whose trial decisions were subject to override by vote of the trial panel and whose interlocutory actions were subject to review by the convening authority. Actual military judges have been used in courts-martial since 1968.

§ 948k governs trial and defense counsel assignment, allowing civilian as well as military “trial counsel” (prosecutors) but requiring an actual military judge advocate be assigned for the defense.

§ 948m requires a minimum trial panel of five members except for capital trials where a minimum panel of twelve is called for by § 949m(c).

Comment: This is a significant improvement from the original rule which permitted trial by panels of just three officers. Since convictions generally require only a 2/3 majority, a three member panel actually required the defense get a 2/3 majority to avoid conviction.

Subchapter III – Pre-Trial Procedure

§ 948r prevents defendants from being required to testify and excludes any statement obtained through torture. Statements obtained through coercion, or in which the degree of coercion is disputed, may be admitted if the military judge finds that:
(1) the statement is probative and reliable under the totality of the circumstances; and
(2) the interests of justice are best served by its admission.
If the statement was obtained after enactment of the Detainee Treatment Act of 2005 (DTA)(Title X of P.L. 109-148, 119 Stat. 2739), then it must also not have been obtained in violation of § 1003 of that act, i.e., it must not be treatment that would violate the 5th, 8th, or 14th Amendments to the U.S. Constitution.

Comment: This section is one of the most troublesome provisions of the MCA. Given how narrowly the Administration has defined torture, even the most egregious interrogation procedures used at Guantanamo and elsewhere likely fall only in the coercion category. The language might also leave room for prosecutors to argue that a statement obtained by actual torture was merely coerced, making the degree of coercion then “disputed.” Under the literal MCA wording, a judge could then decide to admit it. The extensive discretion to admit coerced testimony, particularly if obtained before 2005, means that the ultimate fairness of these trials likely depends on how liberally judges are willing to interpret the terms of art “reliable” and “interests of justice.”

Subchapter IV – Trial Procedure

§ 949a authorizes the Secretary of Defense, in consultation with the Attorney General, to make specific rules for military commission procedure, calling for principles of law and rules of evidence to conform with those for court-martial to extent deemed practicable. The accused is specifically entitled to see evidence entered against him, to be present for all trial sessions, and to defend themselves. The “probative to a reasonable man” evidentiary standard is specifically authorized but commission judges are now required to exclude evidence whose probative value is substantially outweighed by danger of unfair prejudice. Hearsay is admissible so long as the opponent is given advance notice and the opportunity to demonstrate that it is “unreliable of lacking in probative value.” Congress must be notified of any rule changes 60 days before they go into effect.

Comment: By requiring detailed rules promulgated in advance, this section mandates significant improvement over the initial commission proceedings in which presiding officers were observed to largely make up procedural rules as they went along. (The requirement for standing rules contained in this section was subsequently met through the promulgation of The Manual for Military Commissions in January, 2007). New requirements that the accused be present at all actual trial sessions, and be able to see all evidence that is actually introduced against them, address the most serious tribunal criticisms cited by the Hamdan majority. While the hearsay provisions trouble many attorneys steeped in Anglo-American legal traditions, the language applies even-handedly to both prosecution and defense. This approach was adopted in the Navy trials conducted on Guam after WWII, considered by historians who have examined them to be the fairest of that era. Fully half the requests for Guam hearsay admission originated with the defense. Presumably many witnesses of value to Guantanamo defense teams would be unwilling to travel there fear of being seized and detained themselves. So the ability to introduce statements remotely could be helpful to the defense.

§ 949b prohibits improper influencing of a commission, judge, reviewing authority, or counsel.

Comment: Although the article contains no punitive provisions for its violation, persons subject to the UCMJ could possibly be subject to prosecution for its violation under Article 92 (disobeying a general order – this would apply based on the statutory provision being incorporated into subsequent military commission regulations) or one of the “general articles:” Article 133 (conduct unbecoming an officer) or 134 (conduct prejudicial to good order and discipline).

§ 949c defines duties of trial and defense counsel, and specifically articulates criteria for civilian representatives, including U.S. citizenship, membership in a U.S. bar, eligibility for at least a Secret clearance, and having signed an agreement to comply with all commission ground rules.

Comment: These rules are a marked departure from past war crimes prosecutions. Defendants traditionally have had the right to be defended by counsel of their own nationality; in most cases this representation was underwritten by trying nation. Given the substantial distrust most commission defendants likely harbor towards the United States, ability to select trusted counsel seems essential to a fair trial.

§ 949d allows the military judge to conduct hearings on legal matters without the trial panel, permits closure of the trial to the public for safety or security reasons, and allows exclusion of a disruptive accused. The government can limit the accused’s access to classified information and protect sources and methods from disclosure.

Comment: Most of this section simply conforms military commission procedure to that of courts-martial. The accused does now get to see all evidence that the trial panel does, rectifying a major injustice in the original rules. But the ability to withhold source data might in practice deny the accused the ability to help his attorneys contest the validity of evidence against him. The ability to conceal source data may also be abused to avoid disclosure of interrogation methods and degree of coercion involved, thus precluding meaningful determination of its reliability. These rules do not necessarily preclude a fair trial, but justice will be at the mercy of good faith conduct by both the prosecution and trial judge.

§ 949f allows the trial judge to decide challenges for cause and gives each side one preemptory challenge.

Comment: This brings commission procedure in line with courts-martial and is a big improvement over original rules which lacked preemptory challenges and required challenges for cause to be decided by the convening authority who had personally approved the panel.

§ 949i applies UCMJ language about pleas to the military commission.

Comment: This is potentially significant because unlike U.S. civilian courts, courts-martial cannot accept a guilty plea if the accused fails to admit every element of the offense. Proceedings against Abu Ghraib defendant Lyndie England were disrupted by this concern.

§ 949j states that the defense “shall have a reasonable opportunity to obtain witnesses and other evidence . . . .” and provides for discovery by the defense and an obligation for the prosecution to disclose exculpatory evidence. This is tempered by the authority for the prosecution to seek the judge to authorize substitutions for classified information.

Comment: This section gives reason for significant concern. UCMJ article 46, by comparison, gives court-martial accused “equal opportunity to obtain witnesses and other evidence,” not “reasonable.” This section can also be read to mean that the prosecution may withhold some classified information even from defense attorneys who have security clearances. And it clearly states that some relevant information can be withheld from the accused themselves as long as it is not given to the trial panel. This section calls into question whether the defense will be able to learn enough about classified evidence’s pedigree to meaningfully challenge its reliability.

§ 949m requires the same votes as for courts-martial: 2/3 for conviction and routine sentencing, ¾ to sentence to more than ten years confinement, unanimous for conviction in a capital case and for the death sentence.

Subchapter V – Sentences

§ 949t authorizes the President or Secretary of Defense to prescribe maximum punishments for offenses.

Comment: This is consistent with the UCMJ, but potentially subject to abuse since there is no constraint on what limits, other than death, can be put on even minor offenses.

§ 949u allows sentences to be served in facilities under military or federal facilities, as well as those under the control of “its allies, or which the United States may be allowed to use.”

Comments: The idea that convicted individuals might be allowed to serve sentences in their home countries (e.g., Australian David Hicks) could be viewed as positive, but the term “allies” is never defined in the bill and the phrase “which the United States may be allowed to use” seems hopelessly ambiguous. Some convicted individuals could be transferred to foreign prisons failing to meet international standards for humane treatment. The MCA also never states what happens to individuals who complete their sentences – must they be released or can they be returned to indefinite preventative detention?

Subchapter VI – Post-Trial Procedure and Review of Military Commissions

§ 950b – e provide post-trial review by the convening authority and initial appeal rules essentially the same as that provided in courts-martial.

§ 950f creates a first tier appellate review consisting of a panel of at least three appellate military judges called the “Court of Military Commission Review.” The panel is limited to reviewing matters of law.

Comments: This is generally consistent with UCMJ procedure except that courts-martial review includes authority to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact.” (10 U.S.C. § 866(c)). The first level of appellate court-martial review was originally called the “Court[s] of Military Review;” hence the logical origin of the “Court of Military Commission Review.” (They have subsequently been renamed as the “Court[s] of Criminal Appeals.”) As the first level of a two-tiered appellate process, this new review panel should not be confused with the single review panel previously established by DOD. (See Military Commission Instruction No. 9, Oct. 11, 2005 for details of the superseded provisions).

§ 950g provides for appeal from the Court of Military Commission Review (CMCR) to the U.S. Court of Appeals for the District of Columbia Circuit (or directly to the D.C. Circuit if an accused waives the right to CMCR review). Such review is limited generally to questions of law, and specifically to whether the result was consistent with the MCA and “to the extent applicable, the Constitution and the laws of the United States.” The Supreme Court is then authorized to review D.C. Circuit final judgments by writ of certiorari.

Comment: The substitution of the D.C. Circuit for the Court of Appeals for the Armed Forces (CAAF), established by the UCMJ as the second tier review of courts-martial convictions, is curious. The narrow limitations on the scope of issues allowed to be considered on appeal, if upheld on the almost inevitable judicial challenge, will leave substantial grounds for perceiving the military commission process to be unfair.

§ 950h calls for government provision of appellate counsel at no cost to the defense at each level of review, and also allows the accused to be represented by civilian counsel.

Comment: This section requires civilian appellate counsel to meet the same restrictions imposed on trial counsel, and may constrain defendants’ ability to obtain experienced appellate practitioners. Requiring clearances for all counsel seems unnecessary given that appeals are currently limited to questions of law. Defendants would need one lawyer with an appropriate clearance when there are classified portions of the trial record, but should logically be able to call upon any qualified attorney to present arguments of law.

§ 950j establishes the finality of military commission judgments, subject only to the appellate procedures provided by the MCA. It states that no “court, justice, or judge” has jurisdiction to hear any other claim related to military commissions, including any pending at the time of MCA enactment.

Comment: This comprehensive effort to strip federal courts over all collateral jurisdiction over military commissions is obviously one of the most controversial provisions of the MCA. It is a clear departure from past practice – both courts-martial and military commissions have historically been open to collateral review. Post 9/11 indefinite detentions and military commission trials raise unprecedented issues of law that logically beg judicial resolution.

Subchapter VII – Punitive Matters

§ 950p proclaims that the MCA simply codifies existing offenses “traditionally” triable by military commissions and therefore does “not preclude trial for crimes that occurred before the date of enactment.” §§ 950q – v then provide definitions of terms such as “principals” and “accessory after the fact,” as well as enumerating 28 specific offenses ranging from “murder of protected persons” to “conspiracy.”

Comments: This is probably the most immediate area of concern among MCA provisions relating directly to trials. As the statute implicitly acknowledges, newly defined crimes can only lawfully be prosecuted if committed after MCA enactment. To try individuals for conduct that took place previously, the offenses had to already be crimes under the law of war per the internationally accepted principle of “nullum crimen sine lege.” But this is not the case for several of the offenses defined in the MCA:

§ 950u makes “solicitation” to commit any other offense defined in the MCA an offense triable by military commission. But the Anglo-American conceptualization of inchoate offenses is not shared by many other legal systems, and there is no clear substantive precedent for holding this to constitute a law of war offense.

§ 950v. (b)(28) makes conspiracy to commit any other offense defined in the MCA triable by military commission. While international tribunals recognize participation in a joint criminal enterprise as creating liability for all participants, they do not recognize the Anglo-American inchoate crime of conspiracy, i.e., entering into an agreement to do an illegal act, as constituting a crime per se. This issue was specifically addressed by the Nuremberg tribunal which found conspiracy to commit a crime against peace, that is planning to wage aggressive war, to be the only form of “conspiracy” that could be prosecuted. Conspiracy to commit a war crime was rejected as a punishable offense. This article seems to have been crafted to address some of this concern because it does require “an overt act to effect the object of the conspiracy.” But under international law it is the overt act that should be charged, not the “conspiracy.” It’s likely some detainees could be lawfully prosecuted for conspiracy offenses in Article III courts applying federal criminal law, but these are not offenses under the law of war.

§ 950v. (b)(25) makes “providing material support for terrorism” an offense triable by military commission. Historically the law of war has dealt with the conduct of belligerents, not supporters. This offense seems to lack validity under the law of war. It is also unnecessary; by international agreement terrorism has been treated as an ordinary crime and the U.S. federal code already defines most terrorist acts, including providing material support, as felonies. This conduct can be tried in a regular federal court, but unless the conduct was committed after the date of MCA enactment, should not be triable by a military commission. This is an issue of particular concern because at least one defendant is now charged only with this offense.

There are problematic aspects with several other MCA provisions in this part of the bill:

§ 950v.(a)(2) adopts the term “protected person” from the 1949 Geneva Conventions which is then used in several subsequent punitive articles. Since the Administration explicitly denies the Conventions’ applicability to what it calls “the war on terror,” it is not clear that this definition is part of applicable international law in this conflict. If the United States is not granting the protections accorded by the Conventions, shouldn’t it be estopped from using them as the basis of criminal charges? (The conduct at issue, e.g., intentionally killing non-combatants, does logically constitute war crimes, but should be defined with respect to the customary law of war rather than by reference to treaties the government holds inapplicable).

§ 950v.(a)(24) makes “terrorism” a crime triable by military commission. Most of the conduct described in this article does violate the law of war but should be defined in traditional terms – e.g., conducting indiscriminate attacks, and not defined by the term “terrorism” which is part of civilian criminal law parlance.

§ 950v.(a)(27) addresses spying, which is historically a crime punished by military tribunals, but fails to apply the customary law of war requirement that the individual must be captured before returning to their own lines. Unlike the federal crime of espionage, under the law of war once a “spy” rejoins their own forces, liability for the offense is permanently terminated.

§ 950w permits military commissions to try for perjury, obstruction and justice, and contempt.

Comment: It is unclear just who can be tried for these offenses. The MCA does use the term “anyone” in conjunction with contempt, but contains no similar guidance with respect to perjury and obstruction of justice. Since § 948c. previously made only unlawful enemy combatants liable to commission jurisdiction, the ambiguity in § 950w should logically be construed in a manner consistent with that express limitation.

Section 4 of the MCA makes technical conforming amendments to the UCMJ. The one substantive change is language added to UCMJ article 81 making conspiracy to commit a war crime a violation of that statute as well.

Section 5 declares that neither the Geneva Conventions nor the Additional Protocols (to which the United States is not a party) can be invoked as a source of rights in civil actions in U.S. courts if the U.S. or anyone affiliated with the government is a party.

Comments: Given that the U.S. denies the applicability of these agreements to the current conflict anyway, and the Supreme Court has held that only a single provision, CA3 is applicable, this measure is largely symbolic as far as the current conflict goes. Obviously intended to cabin U.S. government liability, this provision would perversely also bar American servicepersons from suing foreign officials for mistreating them.

Section 6 addresses several aspects of the Geneva Convention under U.S. law. It amends the War Crimes Act (WCA) (18 U.S.C. 2441) by retroactively replacing the existing generic codification of CA3 violations with an explicitly defined set of offenses. It gives the President authority to interpret the meaning of the Conventions and also to promulgate additional Convention violations as criminal offenses via Executive Order published in the Federal Register.

Comments: This section is a curious mixture of advances and retreats with respect to defining war crimes under federal law. Each of the four Geneva Conventions has an article which define which of its provisions constitute “grave breaches” if violated. According to the Conventions, state parties are obligated to exercise universal jurisdiction over these grave breaches and to suppress all other violations. The U.S. has fallen well short of its obligations in this respect. Four decades after ratifying the treaties, the U.S. finally enacted the WCA in 1996, asserting jurisdiction over grave breaches but only if either perpetrator or victim are American. This approach fails both to meet the universal jurisdiction mandate for grave breaches or to meet the treaty obligation to suppress other breaches. Congress amended the WCA the next year to add CA3 violations as punishable offenses, but provided no specificity as to what constituted a violation.

On the positive side, the MCA now details conduct prosecutable as CA3 violations, and the President is authorized to expand the coverage of other Geneva violations that can be punished via Executive Order. On the negative side the retroactive narrowing of the scope of criminal CA3 violations was obviously crafted to exempt government officials from prosecution for detainee treatment that would fall within any reasonable person’s interpretation of cruel, inhuman or degrading treatment proscribed by CA3. It also excludes denial of a fair trial from the list of defined offenses, so participants in the military commission process are protected as well. On the incomprehensible side, the MCA addresses “grave breaches” of CA3 although there is no such thing under the Conventions, and bars use of foreign/international legal materials in interpreting CA3 violations. The last point is probably largely symbolic; since the statute now spells out in detail the conduct that can be punished there is less need to consult persuasive authority than if the statute simply makes violation of the somewhat ambiguous CA3 language.

Section 6.(b)(5) declares that although Congress has substantially narrowed the scope of CA3 violations that can be prosecuted in federal courts, this does not define the limits of U.S. obligations under CA3. Section 6.(c) categorically declares that the U.S. government is prohibited from inflicting “cruel, inhuman, or degrading treatment or punishment” on any person, regardless of nationality or location. This treatment is then defined in terms of conduct that would be proscribed under the Fifth, Eighth, and Fourteenth Amendments, and the President is called upon to ensure compliance via administrative rules and procedures. Once this is done, U.S. service personnel and civilian defense contractors could likely be prosecuted for violations under UCMJ article 92, although CIA personnel probably could not be. Unfortunately it appears that the Department of Justice takes a very narrow view of what conduct violates these amendments so it remains to be seen what standard will ultimately be applied.

Section 7 amends the federal habeas statute (28 U.S. 2241), previously amended by the DTA, to more clearly strip jurisdiction over individuals determined to be, or awaiting determination to be, enemy combatants, leaving intact only the limited D.C. Circuit Court of Appeals review provided for by the DTA.

Section 8 amends DTA language to require the government to provide lawyers to federal officials under investigation or criminally charged for conduct involving suspected terrorists that was authorized by direction from higher authority.

Sections 9 and 10 make technical amendments to the DTA to bring its language into conformance with the MCA.

Conclusion: The MCA restores much of the historic commonality between courts-martial and military commissions and repudiates a number of the Bush Administration’s efforts to adopt rules biased against defendants. It is possible that a fair trial could be conducted under this statute, but only if the government refrained from charging those offenses not clearly supported by the law of war, the prosecution fully discloses all evidence and provides sufficient details about the sources to permit accurate assessment of its validity, no coerced testimony is admitted, and any hearsay is carefully scrutinized for reliability and lack of prejudice. Given that the government has already rushed to press post-MCA charges apparently unsupported by the law of war, the MCA’s limitations on both habeas and direct review seem to further reduce the likelihood that justice will be achieved by the Guantanamo trials.

JURIST - Annotations

The Military Commissions Act