an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Bush Administration Draft Hamdan Response Bill
Here's one version of the draft legislation that the Bush Administration is considering in the wake of Hamdan. I believe it's the same version that the New York Times and Washington Post have reported on in recent days. (NOTE: FWIW, I did not receive it from anyone in the Administration or those two newspapers. My sense is that it's been floating all around town today.)
I think it's fair to assume that it's a work in progress. There's also reason to believe that this is not the entirety of the proposals -- for one thing, Common Article 3 is discussed only in the Findings, not in any operative provisions. But it likely contains most of the draft proposals on military commissions -- and even, for the first time, statutory detention authority, defined to cover all "enemy belligerents."
Others will undoubtedly have more to say about the numerous proposals with respect to military commissions, some of which seem very troubling. [UPDATE: Invaluable initial thoughts from Dave Glazier over at Intel Dump.] But I'd like to focus on the definitions of who can be detained and tried, and on Common Article 3, because those issues are probably more important, yet are receiving far less attention. [UPDATE: One general matter: Section 104(a) appears to authorize the President to use his "constitutional authority" to establish other commissions, independent of those prescribed in the Act, "should circumstances so require." That seems like a huge, gaping loophole that presumably Congress will want to address if its intent is to provide a framework under which the President must act.]
As for who can be detained and tried in military court:
On first glance, the proposal does not appear to be limited to aliens (the word "alien" was repeatedly deleted), nor even to Al Qaeda and other groups and individuals covered by the September 18, 2001 AUMF -- it covers any and all "enemy combatants" against the U.S. and its allies in any conflict, anywhere and at any time. And "unlawful enemy combatant" is defined to include -- but not be limited to -- an individual or is orwas "part of or supporting" Taliban or Al Qaeda forces, or associated forces engaged in hostilities against the U.S. or its coalition partners. If I'm reading this right, if you're a citizen alleged to have "supported" a hostile group "associated" with Al Qaeda, you can be (i) detained until the "cessation of hostilities" (with whom? doesn't say); and (ii) tried before a military commission.
As for Common Article 3, and interrogation techniques:
This draft does not contain any of the operative provisions relating to Common Article 3, so we can't yet tell what the Administration's proposals will be. But the draft's Section 102(9) contains two "findings" that may give us some clue of the direction in which they're heading:
-- The first is that the standards for treating detainees under the McCain Amendment "fully satisfy any obligations of the United States regarding detainee treatment under common Article 3(1)." As I've explained (See Myth No. 6), that might be true if the McCain Amendment were construed to prohibit all of the "cruel treatment and torture" proscribed by Common Article 3. But there is a good chance that the Administration is not construing the McCain Amendment to prohibit the enhanced CIA techniques, e.g., Cold Cell, Long Time Standing, stress positions, sleep deprivation, and possibly waterboarding -- in which case the McCain standards would not, in fact, satisfy U.S. obligations under Common Article 3. [UPDATE: Jeffrey Smith's terrific article in the WaPo tomorrow confirms this strategy: "The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that 'shocks the conscience.' This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute."]
Administration officials are already making noises that the "clarification" is necessary because of the so-called vagueness or ambiguity of Common Article 3, especially the prohibition on "humiliating" treatment. This is a red herring. The issue is the CIA, which is not so concerned with the ban on humiliation in section (a)(3) as it is with the ban on "cruel treatment and torture" in section (a)(1). Moreover, the substantive standard of the McCain Amendment (the "shocks the conscience" test) is actually much more uncertain, and vaguer, than the terms in Article 3(1)(a) itself, and arguably more subject to a case-by-case post hoc analysis rather than categorical limits. Don't take my word for it; listen to the Vice President: "The rule is whether or not it shocks the conscience. . . . Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose that's in the eye of the beholder."
Once you realize that the McCain Amendment is even vaguer and more indeterminate than Common Article 3, it becomes clear there's really no other reason for the Administration to seek to construe CA3 to be coterminous with McCain other than to circumvent the categorical prohibitions in CA3 section 1(a) on "cruel treatment and torture."
Accordingly, the thing to watch for, as the legislative process moves forward, is some specification -- in the statute itself or in the legislative history -- of what, exactly, the McCain Amendment prohibits.
-- The second finding is that "the Geneva Conventions are not a source of judicially enforceable individual rights." That language seems fairly sweeping. But as with the rest of this evolving debate, the devil will be in the details of the operative statutory language. It would be one thing to cut off possible causes of action by private parties directly under the Geneva Conventions. In and of itself, that would be very controversial. But it would be quite another thing entirely -- and much more alarming -- if the bill made it impossible for parties to invoke Geneva under any other cause of action, such as, e.g., a habeas petition (as in Hamdan itself), or the Alien Tort Statute or, for that matter, a criminal prosecution under the War Crimes Act.
The best news I've seen on a quick glance is that the bill purports to reflect an intent to comply with the laws of war, including the customary laws of armed conflict. See sections 102(5); 104(e). Thus, presumably the Act would have to be construed, where possible, consistently with the laws of war (something that would be the ordinary, Charming Betsy default rule, in any event). In other words, there's no obvious intent -- yet -- to enact any laws that would conflict with treaty obligations and other laws of armed conflict. Posted
by Marty Lederman [link]
The proposed draft Detainee Commissions Act (pdDCA2006) [my title, not the one on the draft, which is "Enemy combatant militiary commissions act of 2006"] on this site gives a sense of being all points and no authorities, except for the boilerplate lifted from UCMJ in titles 200ff.
Jack has covered the international court aspects.
The only cite in DCA 100 of note is Madsen v Kinsella (1952), a case involving jurisdictional disputes in occupied W. Germany and habeas rights of an American spouse whose detainment was for a domestic crime but the argument was concerning which jail would house her, so jurisdiction description necessitated review of the president's rights to form commissions, as she potentially could have been tried in two different venues in occupied territory. Detainment after sentencing was in the territorial US.
At pdDCA2006 section 228 UCMJ Article 55 boilerplate about various kinds of torture is a very limited list by modern standards. You have written elsewhere on the list of techniques employed by US personnel 2001ff.
During the legislative history of the McCain amendment I thought its evolution began from a surprisingly lax specificity, it was watered down, finally passed, and the presidential signing statement, moreover, invoked cryptically the 'unitary' executive authority to disregard it in order to protect citizens of the US; immediately following that passage in the signing statement the president's language reaches toward the Graham amendment and its narrowing of habeas. I think congress in discussing the pdDCA2006 needs to make specific its intentions with regard to the linkages it sees between letting the president disregard fairly bland bans on torture and allowing him to rework habeas.
Complementarily, UCMJ rules of evidence boilerplate imported in pdDCA2006 in the copy of that document linked, above, already have traces of redactions of prisoner rights. It is clear where the editor of that recension was going; but, it is part of the process of politics; and, hopefully, open discussion will result in a more transparent process for detainee treatment from capture to its ultimate end, and, importantly, what congress is willing to let the president do, by the legislative body's proactively defining the bounds of his discretion.
I found distasteful, but, perhaps, not untenable, pdDCA2000 explicit limitations or the prisoner's (or his counsel's) right to hear all of the charges against him; similarly, the admissability of hearsay from witnesses is a weak part of the commission evidentiary construct preserved in its flawed state in pdDCA2006.
Throughout, I got the sense the president intends to blue pencil the Geneva Conventions, as well, employing his executive right to withdraw from treaties, as has been this president's wont.
Some of the rhetoric about the international interface appears virtually lifted from Yoo Bybee epoch writings.
The most encouraging parts of the draft, perhaps, are its very existence. It holds out hope that there will be dialog, and seems to indicate the Supreme Court's work has borne fruit.
I perceive many well intentioned people engaged in developing this legislation; indeed, abroad as well as in the US. It is a work that will help understand how to address the civil unrest it seeks to help us control and resolve.