Why The Military Commissions Act is No Moderate Compromise

Wednesday, Oct. 11, 2006

The original version of this column contained a number of inadvertent mischaracterizations of the MCA. The mischaracterizations have been corrected in the version below. Professor Dorf apologizes for the errors and thanks the readers who called them to his attention. -- Ed.

Americans following the news coverage of the debate about how to treat captives in the ongoing military conflicts could be forgiven for believing that the bill recently passed by Congress, the Military Commissions Act ("MCA"), was a compromise between a White House seeking far-reaching powers, and Senators seeking to restrain the Executive. After all, prior to reaching an agreement with the President, four prominent Republican Senators--Susan Collins, Lindsey Graham, John McCain, and John Warner--had drawn a line in the sand, refusing to go along with a measure that would have redefined the Geneva Conventions' references to "outrages upon personal dignity" and "humiliating and degrading treatment." No doubt many Americans believe that because these four courageous Senators stood on moral principle, the bill that emerged, and which President Bush will certainly sign, reflects a careful balance between liberty and security.

Yet if that is what Americans believe, they are sorely mistaken. On nearly every issue, the MCA gives the White House everything it sought. It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens--including permanent residents whose children are citizens--that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

One can only guess at why Collins, Graham, McCain, and Warner so utterly capitulated to the White House, but the impact is clear. Psychologists describe the phenomenon of "anchoring," in which one of many possible positions on a question "anchors" people's views about the right answer to the question. If, for example, a person is asked how much money a car is worth, and the figure of $20,000 is suggested, he or she is likely to give an answer near $20,000, even if the car is worth a lot more or a lot less.

Likewise, here: The seeming opposition between the President and the four Senators may well have anchored the debate about detainees as a choice between the President's proposal and the Senators' only slightly less draconian measures. Yet even a cursory survey of the MCA's provisions reveals how far it departs from previously-cherished American norms. Had those norms, instead, anchored the debate, the MCA would have been clearly recognized as the extreme measure that it really is.

The Too-Quick Rejection of Civilian Courts

Last week, the Columbia Law School chapter of the Federalist Society sponsored a debate on the MCA between myself and Boalt Hall Law Professor John Yoo. During his recent stint in the Justice Department, Yoo played a key role in writing memos asserting broad Presidential powers to detain, interrogate (some would say torture), and try persons deemed by the President or his agents to be unlawful enemy combatants. Since leaving the government, Yoo has been an outspoken proponent of Presidential authority unfettered by judicial oversight.

In our debate, Professor Yoo began by posing what I agree is the right question: How should a constitutional democracy deal with organized non-state terrorists?

Yoo's analysis went essentially as follows: The law of war does not, and should not, entitle people who deliberately blend in with and attack civilians to the privileges of lawful combatants. But the ordinary criminal justice system--utilizing civilian jurors and the full panoply of procedural rights--is ill-suited to deal with international terrorists. Accordingly, the President in proposing, and Congress in passing, the MCA were right to rely on military commissions.

Although Yoo asked the right question, he--and the politicians with whom he agrees--framed the debate as a false choice. For one thing, it is hardly obvious that the criminal justice system is, in fact, inadequate for trying accused terrorists. The Justice Department has a perfect record of convicting al Qaeda and affiliated terrorists, and before 9/11, it did not occur to anyone that the procedures developed by the courts for handling classified information and security risks were inadequate. Terrorists, such as those who bombed the World Trade Center in 1993, had been tried, and convicted, in civilian federal courts before. Even after 9/11, the government obtained a conviction of and life sentence for Zacarias Moussaoui in civilian court.

To be sure, the federal courts undoubtedly lack the capacity to try everybody that the United States detains in every military conflict around the world, but no one has suggested that all such people would be tried. Even now, five years into the conflicts, the Administration has announced plans to try only a tiny handful of the people it has detained. The vast majority have either been released, or are being held indefinitely-- either pending the location of a suitable country for deportation, or while military conflict persists. No one has explained why the federal courts could not handle one or two dozen trials of those persons accused of offenses.

The False Choice Between Civilian Courts and Military Commissions

Moreover, even if one concludes that civilian courts are inappropriate for terrorism cases, it does not follow that one must rely on the sorts of special military commissions established by the MCA. As the Supreme Court explained in its June decision in Hamdan v. Rumsfeld trial by court martial under the Uniform Code of Military Justice (UCMJ) would certainly comply with international law and the Constitution. Had the Bush Administration been willing to utilize courts martial, it would not even have needed to go to Congress for new legislation.

The military commissions established by the MCA differ from courts martial in a number of key respects. Most conspicuously, the military commissions will use relaxed rules concerning the admission of evidence, including some otherwise excludable hearsay and evidence obtained by coercion, and except for a limited list of procedural guarantees, the MCA requires the military commissions to comply with the rules used by courts martial only to the extent that the Secretary of Defense considers such rules to be practicable and consistent with security considerations.

These are not mere technical matters. The procedural protections of courts martial that the military commissions discard play an important role in preventing and remedying erroneous convictions of innocent people. Yet here too, proponents of military commissions have offered no persuasive justification for abandoning courts martial.

The move from courts martial to military commissions imposes serious costs on the accused while yielding marginal if any benefits for society. As Justice Kennedy noted in his concurrence in Hamdan, courts martial are fully capable of trying cases involving terrorism suspects without compromising national security: After all, they have long-established procedures for handling the use of classified information, including admitting into evidence a declassified summary of the contents of the classified report.

In his majority opinion in Hamdan, Justice Stevens made plain that historically, military commissions were justified by necessity. Given the exigencies of war, it is not always possible to convene a civilian court or a full court martial. In the MCA, Congress has authorized military commissions without any good reason for concluding that civilian courts or courts martial could not do the job at no greater risk to national security.

Torture and Other Harsh Methods of Interrogation

Despite its title, the Military Commissions Act is not just about military commissions. It also contains provisions governing the treatment of detainees. Here the bill can only be described as an elaborate exercise in misdirection.

Section 5 of the MCA declares that no one may invoke the Geneva Conventions as a source of rights in a U.S. court case against the United States or one of its agents. Section 6 of the MCA then purports to implement the Geneva Conventions.

In principle, that is unexceptionable. The Geneva Conventions are treaties which the United States signed, and treaties frequently are not self-executing: that is, they can require implementing legislation. However, the substance of the MCA's Section 6 makes evident that it does not, in fact, implement the Geneva Conventions themselves but rather implements a watered-down version of them.

For example, while retaining criminal sanctions for "grave breaches" of common Article 3 of the Geneva Conventions, the MCA forbids U.S. courts from looking to any "foreign or international source of law" to determine what constitutes a grave breach. Yet even those Justices of the Supreme Court who object to the use of foreign or international law in interpreting the U.S. Constitution, readily acknowledge that foreign and international law are of course relevant in interpreting a treaty. The MCA therefore replaces the actual Geneva Conventions with a kind of special U.S. edition of them.

The MCA also lists specific acts that constitute grave breaches of Common Article 3, and thus constitute war crimes. The list includes torture and "cruel or inhuman treatment," but these come with a crucial limitation.

The MCA makes applicable to U.S. personnel accused of violating Common Article 3 between September 11, 2001 and December 30, 2005, a defense established by the Detainee Treatment Act of 2005 (DTA), which was enacted on the latter date. Such personnel may escape criminal conviction for waterboarding and like practices if they believed in good faith that what they were doing was lawful. The relevant provision of the DTA in turn makes reliance on memos of the sort produced by the Justice Department "an important factor" in determining knowledge and good faith.

Indeed, the Administration and many of its allies in Congress refuse even to say whether they think that the MCA prohibits future waterboarding. They argue that stating what specific practices are forbidden would give our enemies an advantage, because these enemies could then focus their training on methods of resisting only those harsh interrogation methods that are permitted; yet the Administration and its allies simultaneously argue that the MCA is needed to tell our own interrogators exactly what they can and cannot do. They do not explain how the same language of the law can somehow provide guidance to our troops and civilian interrogators, but not to the enemy.

The Constriction of the Writ of Habeas Corpus

There is, of course, an answer to that question, but it is not a pretty one: Perhaps the enemy will be kept guessing because the Administration does not actually intend to abide by the provisions of the MCA or DTA. After all, no alien can sue to enforce these provisions, and thus violations may never come to light. And that's before the President construes the MCA even more narrowly in a signing statement, as he is wont to do.

Although torture and related maltreatment remain federal crimes under the MCA, alien victims of torture who are declared by the executive to be enemy combatants have no ability to bring their claims to court. Section 7 of the MCA eliminates the right of habeas corpus and the right to bring a petition challenging "any other action [by] the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of" such persons.

Under the terms of the MCA, then, the government could declare a permanent resident alien--including someone who has been residing lawfully in the United States for decades--to be an enemy combatant, and lock him up, potentially forever. That alien--who could be your neighbor--would never have an opportunity to challenge his detention or treatment in a U.S. court.

To be sure, if the government provides someone declared to be an enemy combatant with a combatant status review tribunal (CSRT), then the DTA authorizes judicial review of that determination. And the MCA does amend the DTA for the better in one important respect: Whereas the DTA only authorized civilian judicial review of CSRT determinations for detainees at Guantanamo, under the MCA, a person held by the United States pursuant to a CSRT anywhere in the world can appeal the CSRT's ruling to a civilian federal court. But, there is no statutory requirement that the government ever utilize a CSRT-and absent a CSRT ruling, there is no access to civilian court.

Thus, under the terms of the DTA as amended by the MCA, there would be no access to a civilian court whatsoever, even if the detainee were held within the United States, so long as the government determined that he or she were an unlawful enemy combatant by some means other than using a CSRT. And at least to that extent, the MCA should be judged unconstitutional as a de facto suspension of the privilege of the writ of habeas corpus. Article I, Section 9 permits Congress to suspend the privilege of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." Public safety may require that the writ be suspended in an active war zone where courts cannot function. But the DTA and MCA apply everywhere.

Accordingly, should the Administration hold aliens within the United States, the courts would likely find that they are entitled to habeas corpus, notwithstanding the terms of the DTA and MCA. Whether there is a right of aliens held outside the United States to habeas corpus is not entirely clear. That question may be resolved by a recent lawsuit filed on behalf of prisoners in Afghanistan.

Misleading Claims Regarding Reciprocity

In the public debate surrounding the treatment of detainees, and in the email I receive from time to time from incensed readers, proponents of the Administration's position frequently question the application of norms of due process to terrorists who themselves engage in barbaric acts. Humane treatment for people who deliberately behead and blow up innocent civilians will not, they argue, lead to better treatment of our own personnel.

There is something to this argument but it ultimately misses three important points. First, we observe norms of humane treatment in part because of who we are. Just as we do not permit cruel and unusual punishment of domestic prisoners--even those who have committed sadistic crimes--so we should not commit similar acts against people from foreign lands.

Second, the reciprocity argument conceives our national interest far too narrowly. The reason to abide by the Geneva Conventions with respect to al Qaeda captives is not because we believe that al Qaeda will therefore reciprocate by treating our personnel well. The reason is that people who are not now our active enemies will be more likely to take up the jihadi cause against us if we confirm their view that the United States aims to persecute Muslims. Even where there is no hope for reciprocal treatment of Americans, disregard of international standards for treatment of detainees undermines our security by losing hearts and minds throughout the world. As the government's own recently declassified National Intelligence Estimate confirms, this is a very real phenomenon.

Third, due process rights are not rights for terrorists but for people accused of being terrorists. Despite Administration claims that Guantanamo detainees are "the worst of the worst," the government has already admitted that numerous people it formerly held in fact posed no great danger. Some of these--like Yaser Hamdi, the subject of the Supreme Court case Hamdi v. Rumsfeld, or the Tipton Three, the subject of the docudrama "The Road to Guantanamo"--have simply been sent back to their home countries, or other places abroad.

In the fog of war, mistakes are inevitable. But once the dust settles, the least we can do is utilize procedures designed to correct those mistakes. Unfortunately, the MCA would only exacerbate them.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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