Thoughts on the "Bringing Terrorists to Justice Act of 2006"

By JOHN W. DEAN
Friday, Sep. 22, 2006

There are lots of good reasons to employ military tribunals to bring terrorists to justice. One of the most persuasive is to keep terrorists out of the American criminal justice system. Trying them in federal courts could endanger the lives of judges, juries, and prosecutors - not to mention their families. It is unfair to assign such life-threatening work to civilians.

Imagine the practical problems in bringing Osama bin Laden to justice in any federal district court anywhere. The Federal Rules of Criminal Procedure, and the security system at even the best protected federal courthouse, never envisioned such an enemy (with his own covert army of suicidal supporters) as a defendant.

Or think about the problem of incarcerating or executing bin Laden at any federal prison after his conviction. His supporters will never believe he received a fair trial, or that he should be punished for anything. It would no doubt take an army to provide protection to those involved in the processes.

For these (among many other) reasons, it makes sense to create a system of military justice capable of dealing with these unique criminals, for the armed services are far better equipped to deal with these problems, and they have volunteered for such hazardous work. So why, five years into the war on terror, has the Bush Administration been unable to bring a single terrorist to trial?

The answer, it seems, is that politics has trumped everything for Bush. The war on terror helps elect Republicans; bringing terrorists to trial, however, could embarrass Republicans - for federal courts are making the Administration play by the rules.

Ignoring the Supreme Court's Ruling on Tribunals

When the use of tribunals was first suggested in 2001, I was among those who thought it a sound concept. The devil, however, arrived later with the details. It never occurred to me (and most people) that Bush & Co. would design a system more befitting a totalitarian state than a democratic nation that once led the world by its good example. Nor was it anticipated that Bush would play endless politics with terrorism.

Not surprisingly, the U.S. Supreme Court has struck down the makeshift, draconian procedures that the Bush Administration employed for military tribunals. Not unexpectedly, the high Court's ruling in Hamdan v. Rumsfeld closed down the tribunals. Hamdan also provided a blueprint for the type of system that would pass constitutional muster, thus providing both the Administration and the Congress with guidelines that would get the job done.

The Court found many problems with Bush's tribunals, in Hamdan: There was no legal basis for their existence, given that they had been created by order of the president without Congressional authority. In charging Hamdan with the crime of conspiracy, they had created an offense unknown to the laws of war. Moreover, and most fundamentally, the tribunals ignored the standards of the Geneva Conventions.

Since the inception of the Bush Administration's war against terror, the President has claimed - unreasonably and without justification - that the Geneva Conventions do not apply to this war with stateless forces such as al Qaeda (or similar organizations) for they are not signatories to the Geneva Conventions. But Bush is wrong.

The Hamdan Court explained that "Article 3, often referred to as Common Article 3 because it appears in all four Geneva Conventions" applies here. Moreover, the Court noted, Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The Court explained further that the Geneva Conventions do not specify the meaning of the phrase "a regularly constituted court," but it also noted that commentary accompanying a provision of the Fourth Geneva Convention, for example, defines "regularly constituted" tribunals to include "ordinary military courts." (In addition, one of the Red Cross' treatises defines "regularly constituted court" as used in Common Article 3 to mean "established and organized in accordance with the laws and procedures already in force in a country.") Significantly, the majority opinion all but suggested that the procedures found in Uniform Code of Military Justice for court martial proceedings define what it means for a body to be "a regularly constituted court" that meets the Common Article 3 standard.

To respond to the Supreme Court's ruling, Bush sent a detailed legislative recommendation to Congress in early September 2006. Remarkably, while his proposal recognizes that the high Court struck down his earlier effort, it makes little effort to comply with the ruling. (FindLaw columnists Joanne Mariner and Sherry Colb have commented earlier on the issues raised by this proposed legislation, and I will not repeat the analysis here.)

But commentary (including my own) cannot begin to convey the blatant nature of the Administration's refusal to follow the Court's ruling. Examples are too numerous to detail in this brief column, but none is better than the refusal to meet the Common Article 3 standard of "regularly constituted courts."

Bush's Proposed Tribunals Do Not Meet the Common Article 3 Standard.

In the Congressional findings of the Administration's legislative proposal, called the "Bringing Terrorists to Justice Act of 2006" and introduced by Majority Leader Bill Frist, no words are minced. In summarizing the proposal, the draft makes clear it will not follow court-martial law as an example of a "regularly constituted court." In fact, there is no "regularly constituted court" in the United States that follows the procedures requested by the Administration.

More specifically, the bill states: "In a time of ongoing armed conflict, it generally is neither practicable nor appropriate for combatants like al Qaeda terrorists to be tried before tribunals that include all of the procedures associated with courts-martial."

Accordingly, the proposed legislation declares that the tribunals will not "share classified information with the accused" -- or, apparently, the accused's attorney, even though that attorney would be an officer of the court, if not a commissioned military officer. The bill also declares permissible "the use of hearsay evidence" because "applying the hearsay rules from the Manual for Courts-Martial or from the Federal Rules of Evidence would make it virtually impossible" to convict the terrorists. And it says terrorists will not benefit from the guarantee of "speedy trials" and other "technical rules."

In short, the Administration has asked Congress for legislation that, on its face, fails to meet the standard of creating tribunals that qualify as "regularly constituted court[s] affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Giving Torturers a Pass for War Crimes

These, however, are only a few of the provisions in the legislation that are contrary to Common Article 3 of the Geneva Conventions. In addition, and most tellingly, Bush seeks to retroactively amend the federal criminal provisions that the United States adopted to enforce the Geneva Conventions.

The Bush Administration's proposed legislation removes a thirty-nine word definition in the Federal Criminal Code defining "war crimes" as including "any conduct which constitutes a violation of common Article 3," and replacing that definition with a seven hundred and eighty-six word laundry list of what the Administration wants to define as war crimes.

Since 1949, when this accord was signed, Common Article 3 has prohibited "(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; and (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Bush claims, however, that these terms are too vague. So he has offered new definitions for the war crimes statue. Not surprisingly, he offers no equivalent language to "violence to life and person," "cruel treatment," "outrages upon personal dignity," and most strikingly, "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court." With regard to this last prohibition of Common Article 3, Bush is asking Congress to join him in violating it by establishing tribunals contrary to this treaty.

But no provision of the proposed law is more telling that the law's provision mandating its own retroactive application. It states, in effect, that it has been the law since September 11, 2001. This, of course, is intended to ensure that all those officials and employees of the Bush government who have been involved in war crimes (acts prohibited by Common Article 3) are home free.

It is a retroactive immunization of torturers. It also retroactively removes the jurisdiction of all federal courts relating to any pending or future habeas corpus actions filed by detainees at Guantanamo and elsewhere. In fact, it takes the federal courts out of the business of providing any redress whatsoever to any alien detained for any reason as "an unlawful enemy combatant."

Removal of All Rights of Redress for Enemy Combatants

One of the most sweeping provisions of this proposed law takes the federal courts out of the business of providing any redress whatsoever, to anyone who becomes entangled - correctly or incorrectly - on the wrong side of the war on terror. It simply removes federal jurisdiction "to hear or consider any claim or cause of action, including an application for a writ of habeas corpus" filed by any non-citizen of the United States who has been detained "as an unlawful enemy combatant." (Many bloggers have called for Democrats to filibuster the proposed law for this reason alone.)

This term is vaguely defined to mean anyone who the President or the Secretary of Defense claims is "part of or affiliated with a force or organization--including but not limited to al Qaeda, the Taliban, any international terrorist organization, or associated forces--engaged in hostilities against the United States or its co-belligerents; in violation of the law of war;" or has "committed a hostile act in aid of such a force or organization so engaged;" or has "supported hostilities in aid of such a force or organization so engaged."

In short, this could include anyone the federal government (Bush and Rumsfeld will delegate and re-delegate this authority) labels "an unlawful enemy combatant." The type of tragic case that comes immediately to mind is that of Maher Arar. Arar, a Canadian, was arrested on September 26, 2002, when he landed at Kennedy Airport in New York, traveling home from a vacation in Tunisia. American officials sent him to Syria, where he was tortured for ten months.

A high-level special commission of the Canadian government has cleared Arar, establishing that he was in no way connected with terror. The American government refused all efforts to clear Arar, and has been fighting his lawsuit - which aims to clear his name, as well as to rectify the injustice done him by the United States. If the Bush Administration's proposed legislation becomes law, the cases of detainees like Arar will simply be tossed.

Republicans with Conscience Have Joined Democrats in Objecting; Democrats, However, Have been Remarkably Silent

The fate of the Administration's proposal remains unclear at this writing. A number of high-profile Republicans, such as former Secretaries of State Colin Powell and George Schultz, have spoken out against the proposal. Roll Call, the newspaper of Capitol Hill, reports that some eight Republicans oppose the bill on varying grounds. There is talk of a filibuster. There is also talk of a presidential veto if Bush doesn't get what he wants.

Frankly, this proposed legislation is shameful. Even the much-heralded opposition of a few Republicans - Senator John Warner of Virginia, Senator Lindsey Graham of South Carolina, and Senator John McCain of Arizona - does little to correct the many deep flaws in this proposal.

This proposal, however, is going to tell us a great deal about where we are as a nation, for as General Powell said, "The world is beginning to doubt the moral basis of our fight against terrorism. To redefine Common Article 3 would add to those doubts." As will amending the war crimes law to absolve prior wrongs, denying detainees "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and enacting a law that insults the Supreme Court.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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