2 posts tagged “military commissions act”

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching  congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers  from  the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that  with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes  explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM  and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

• The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:
• The Jurist Forum, op-ed pieces by law professors and Jurist editors
• Paper Chase - "Serious law. Primary sources. Global perspective".
  
• The FindLaw site, including:
  
• FindLaw News, legal news in their "for legal professionals" section.
  
• The Writ, FindLaw's on-line legal journal, with excellent commentaries, and a discussion forum.
• FindLaws' Annotated Constitution - The full text, with copious commentary and references
  
• The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
• Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
• The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.
  

Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.

One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act. This posting will try to explain what this is all about and why it troubles me. But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

What is Habeas Corpus?

In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.

Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
"No bill of attainder or ex post facto Law shall be passed."

What these two sentences guarantee us is:

1. the right to require the government to justify detaining or imprisoning us
2. the right  not to be outlawed without a trial
3. freedom from laws passed after the fact

Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.

Our most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was  controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the  detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.

The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.

The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.

Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.

The MCA and Habeas Corpus

In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.

Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.

Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism  of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.

After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Senator Dodd, later joined by Senator Leahy, introduced the "The Effective Terrorists Prosecution Act" (S.4060) on November 16, 2006, and Senators Specter and Leahy introduced the "Habeas Corpus Restoration Act of 2006" (S.4081) a few days later. [As with any US legislation the full text, in various versions can be found on the Library of Congress's Thomas Web page. Clicking on the bill's numbers above will take you there.]

"Creating New Rights for Terrorists"?

One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.

Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.

It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's bill:

"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES.    
(a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."

It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.

[Update:
A "Constitutional Guarantee" of Habeas Corpus?

An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th is beginning to cause quite a controversy. As reported, the exchange went as follows:

Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales: “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

As it turns out, the Attorney General may be correct. (See, for instance the posting defending his claim in the liberal Daily Kos blog.) If he is, then it is even more important that the Great Writ be restored by the legislature, and regardless of whether he is right or wrong, it must be chilling to see the Attorney General questioning the right of habeas corpus, and subordinating it to the President's emergency war powers, especially in the context of an indefinite, and perhaps perpetual "War on Terror".

More than ever, it is critical that We, the People, become the voice of liberty, and insist that our legislators defend the Constitution and our rights, or replace them with someone who will.]

JimB.