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
While most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). Meantime, as the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless. Back to the substance of yesterday’s Senate Judiciary Committee hearing: military commissions. (Full disclosure, I was a witness at the hearing as well.) The Senate and the Administration appear to be inching closer to agreeing on procedural protections to govern at the commissions – rules that do some good things, including barring the use of evidence obtained by torture or cruel treatment. The Administration is also pushing to bar the inclusion of any statement obtained involuntarily (essentially the same constitutional rule that applies in Article III court), and to broaden the scope of Article III review on appeal of any commission trial.
The major points of contention at yesterday’s hearing focused on the proposed protocol put forward by the Administration’s Detention Policy Task Force for determining whether criminal prosecution of Guantanamo detainees should proceed in an Article III court or in military commission. The Administration’s protocol says there will be a “presumption” that cases will be brought in Article III courts “where feasible.” It also identifies a set of factors that will govern its choice between two available forums, including the nature and gravity of the offenses, matters of efficiency, and problems of evidence.
The Administration deserves some credit I suppose for having the “presumption” going the right direction. A non-binding resolution passed by the Senate last week would have a presumption in favor of trial by military commission for the Gitmo detainees (you can thank Senators Lieberman and Graham). Nonetheless, I think the protocol’s current multi-factor approach can’t be quite right – either as a matter of policy or of law.
The policy advantage of Article III courts seems to me evident: all of the tactical advantage of securing the long-term, legitimate detention of an actual terrorist, none of the strategic burden of doing it in a legally suspect (or at least reputationally tainted) forum. In all events, as Republicans and Democrats alike seemed to recognize yesterday, there is a huge legitimacy problem with seeming to forum shop on the basis of evidentiary burden. We can’t prove it in an Article III court, so we’ll try to get a conviction under easier rules just isn’t going to – and shouldn’t – fly. If that’s not what the Administration has in mind, the protocol needs some clarification.
Explaining why this forum selection approach is a legal problem is a somewhat more complicated undertaking. Here’s my current take on the law. The Administration’s “presumption” in favor of Article III trials is compelled by the Constitution. In cases like Toth v. Quarles, the Court made clear that the use of military trials for non-servicemembers is strictly limited: “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. …. Determining the scope of the constitutional power of Congress to authorize trial by [military court over non-servicemembers] presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’” Consistent with that “least possible power” understanding, to the extent the Court has recognized that Congress’ power to punish “Offenses against the Law of Nations” extends to the creation of military commissions for non-servicemembers (and Quirin is hardly what one would call pristine precedent), the Court has approved that authority only insofar as Congress’ military commissions legislation of the time was read to be consistent with the common law and international law of war that applied. That’s why, for example, Justice Stevens’ opinion in Hamdan was at pains to emphasize that the absence of “conspiracy” as a charging offense under the law of war was a jurisdictional problem for the last commissions.
As Justice Stevens also pointed out, the justification at common law for military commissions was one of necessity. Military commissions were permissible as jurisdictional gap-fillers, where no other court was available (in cases of martial law, occupation, or in the midst of battlefield exigency). Seven years and thousands of miles removed from any actual battlefield exigency, there can be no argument that the military commissions at Guantanamo are serving any of these purposes. To the extent they may be justified in this context at all, it is as the only forum in which it is possible to charge violations of the law of war – either because there is no relevant charging offense under federal criminal law, or because federal criminal law did not at the time extend to cover extraterritorial offenses. I suppose other justifications might be possible, and I'd welcome hearing them. But in the meantime, I doubt the we-can’t-win-under-the-evidentiary-standards-in-Article-III-court rationale is one of them. Posted
by Deborah Pearlstein [link]