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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Draft of Warner-Graham Bill on Military Commissions
Senators Warner and Graham are working on a new draft of a bill regulating military commissions for unlawful combatants which differs in important respects from the Administration's proposal. A few highlights:
1. Like the Administration's draft, this draft allows commission trials for permanent resident aliens, but not citizens, and it has a fairly broad definition of unlawful alien combatant, which includes anyone "affiliated with" Al Qaeda or the Taliban or "associated forces."
2. One of its most important features is that the draft uses the existing court-martial system as the baseline, and then carves out exceptions (pp. 8-9 and pp 20-24), while preserving specific minimum protections (pp. 21-22).
This draft bans the use of evidence obtained through torture or cruel, inhuman and degrading treatment but in cases of coercion falling short of the same judges may allow the evidence if it is sufficiently probative and if the interests of justice would require it. (p. 19).
3. The bill prevents challenges to the legality of the commissions by any court except in the course of review of a final judgment of a military commission, including challenges through habeas. (p. 55) Language on p. 74 suggests that the Detainee Treatment Act will also be modified but the precise language has not yet been worked out.
4. The Supreme Court may only take appeals from the U.S. Court of Appeals for the Armed Forces (instead of the D.C. Circuit, as per the Detainee Treatment Act). The Supreme Court may not grant cert on cases where the lower court has not granted an appeal first. Appeal by right is only available for cases where the sentence is more than ten years; otherwise it is discretionary.(pp.50-55)
5. The bill offers definitions of torture and cruel or inhuman treatment that apply to "any person subject to this chapter." (pp. 63-64). These provisions seem to apply only to unlawful enemy combatants who could be tried by military commissions under this title. Thus it does not seem to address several of Marty's concerns about torture and cruel and inhuman treatment by our own forces.
6. The bill establishes conspiracy as an offense, which is important because of the Supreme Court's decision in Hamdan. But it doesn't make entirely clear whether the offense has always existed, so that it might be applied retroactively to conduct before the Hamdan decision. The definition of "spying" is also quite broad.
7. The bill extends the Detainee Treatment Act's protection from prosecution of U.S. officials for unlawful interrogation methods. They may defend themselves on the grounds that they reasonably and in good faith believed that they were acting legally. The extension is now made retroactive to September 11th, 2001. (p. 71).
8. Perhaps most important, the draft has not yet settled on final language on two very important questions: how to amend the Detainee Treatment Act's provisions relating to habeas (but see p. 55), and what to do about the war crimes act. (p. 74).
The draft has not adopted some of the most controversial features of the Administration's proposal, and it begins with the existing military commissions system as a baseline. However, as just noted, the draft suggests that new language will soon be added, most importantly on the war crimes issue. That new language might bring back some highly objectionable features of the Administration's proposal. We will have to wait and see whether the bill gets better or gets worse, and whether the mere existence of this bill means that the Administration will have to compromise.
Prof. Balkin, many thanks for continuing to provide current and in-depth information and insights on this important topic. I fear that without such news we will forget about the issue and allow bad law to be made.
As to "permanent resident aliens," who can be law-abiding people here for some time, this would be a scary proposition if it involves acts allegedly done on U.S. soil. Some of the criminal prosecutions that in one or more cases could have been tried militarily under the administration's logic have been shown to be pretty cheesy.