Balkinization: REVISED - Military Commissions, Round 3

REVISED - Military Commissions, Round 3

Deborah Pearlstein

Here follows a revised version of the blog I posted earlier today. It turns out the final version of the legislation that passed the House was largely untouched after all. The full text of the mammoth Defense Authorization Bill in which the military commissions legislation is included is available here; the military commissions provisions are found beginning at p. 979. Serves me right for trusting any old email headed "military commission legislation as passed." My sincere apologies to readers.

The revised take is somewhat more favorable: Unlike Congress’ incoherent efforts to prohibit the transfer of Guantanamo detainees to the United States for trial (which for the moment appear to have failed), and Lindsay Graham’s (similarly incoherent and now unsuccessful) efforts to require that certain detainees be tried in military commissions even if they could be prosecuted in federal criminal court (the opposite of the way the Supreme Court has traditionally understood military courts of necessity to work), the new military commissions legislation remains a mixed bag. It has some good changes, some not so good, and some provisions whose impact will have to be determined in practice.

The Good

There are certainly some improvements in this bill over the military commissions act passed by Congress in 2006, in the wake of the Supreme Court’s Hamdan decision declaring unlawful the first Bush Administration commissions (pursued without congressional authorization). For instance, the new law removes previous language prohibiting anyone from “invoking” the Geneva Conventions as a “source of rights” in any U.S. court. There is instead a much narrower provision denying any unprivileged enemy belligerent a cause of action under the Geneva Conventions. What’s the difference? If a court has jurisdiction over a detainee case already (because he’s seeking a writ of habeas corpus, or defending himself against criminal charges, etc.), the Geneva Conventions may be a source of rights. But the Conventions cannot of themselves get a detainee into court if he has no other reason for being there. At least Congress is no longer trying tell the courts to ignore large swaths of what is, in fact, the Supreme Law of the Land. U.S. Const., art. VI.

In addition to securing the prohibition on evidence obtained by torture or “cruel, inhuman or degrading treatment,” the Administration can also claim substantial victory in having inserted into the legislation the requirement that all statements must be “voluntary” to be admissible in commission proceedings. The interest in a voluntariness standard reflects the understanding that even if a detainee’s treatment didn’t rise to the level of “torture” or “cruel treatment” as a matter of law (evidence that is banned categorically), it might still be possible for evidence to be obtained by a level of coercion inconsistent with the Constitution – and as a result to be insufficiently reliable to justify criminal prosecution. The voluntariness protection in the new commissions bill allows for some exceptions – involving statements made at the point of capture – but it is unquestionably an improvement over the military commissions act of 2006.

The Bad

Slotted randomly into a “general provisions” section of the mammoth authorization bill – not in the military commissions subsection proper – is a provision that I would find truly appalling if not for its self-refuting non-applicability to the Department of Justice (the only agency to whom the provision would realistically apply in the first instance). Here’s the language: “Absent a court order requiring the reading of such statements, no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility the statement required by Miranda v. Arizona (384 U.S. 436 (1966)), or otherwise inform such an individual of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona (384 U.S. 436 (1966)).”

The upshot, I imagine, is to make really really sure that no soldier or CIA agent ever reads anyone Miranda warnings. Nevermind if the occasion on which reading rights might make sense is years and miles removed from any actual battlefield, or if the simple reading of rights is all that stands in the way of welcoming a detainee to a lifetime of lawful imprisonment (after successful conviction in federal criminal court) rather than sending him off to Saudi Arabia for “rehabilitation.” To be clear, I do not mean to suggest that I think soldiers, for example, are somehow required to read combatant detainees Miranda warnings. Just the opposite: current law on Miranda warnings recognizes an exigency exception to the reading of such rights that surely extends to battlefield situations. And of course Miranda only comes into play at all if criminal prosecution becomes appropriate. But it is one thing to recognize that the law, appropriately, does not require the reading of such warnings. It is another thing to affirmatively prohibit their use – even if Mirandizing a detainee at some point would open up a possibility of prosecution that actually serves the national security interest of the United States. I don’t wish to overstate the point. Given that the provision excepts the Justice Department from its purview – such that any FBI agent is free to administer the relevant warnings if appropriate – I believe the provision is toothless enough to have no serious impact on actual operations to be of much concern. It seems important to note, nonetheless.

The Not So Good

The definition of who may be tried by military commission is broader than the definition (at least according to several of the federal district courts currently hearing Gitmo detainee habeas petitions) for who may be detained under the 2001 Authorization for the Use of Military Force (as informed by international humanitarian law/the law of war). Under the new law, those who may be tried by military commissions are described as “unprivileged enemy belligerents,” theoretically a law-of-war term, but here meaning not only individuals who have actually “engaged in hostilities against the United States,” but also individuals who have “purposefully and materially supported hostilities against the United States or its coalition partners.” As Judge Bates explained in his habeas opinion interpreting the AUMF and rejecting the notion that “material support” alone could qualify one for belligerent status (essentially permitting detention until the conclusion of the relevant armed conflict), there is no basis in the law of war for understanding “support” per se as sufficient to qualify one for belligerent status (as opposed to simply domestic criminal conduct). I’m pretty sure Judge Bates got this part right. The inclusion of a requirement that the support be “purposeful” is certainly wise, helping to ensure that not just any civilian taxpayer could be considered a belligerent (rather than a civilian, protected from, say, targeting). But it remains far from clear the material support language in this bill reflects any established law of war understanding.

Beyond the apparent mismatch between the military commission definition and international law, does the definition of unprivileged belligerent under the MCA have to match the definition of unprivileged belligerent under the AUMF? Well, if the new approach to counterterrorism is supposed to have the United States taking international law seriously, it would be nice if a consistent understanding of who may be subject to the laws of war – and who may not – were reflected in its statutory authority. Add this to the list of litigating issues.

The Uncertain

Which brings us to another piece of the new bill that doesn’t look good on paper: Despite its absence from any list of recognizable, international “war crimes,” “material support” is still a triable criminal offense by U.S. military commission. Indeed, while effectively insisting that “material support” is a war crime – the sole putative justification for having trials by military court rather than in civilian federal court – the bill expressly defines the war crime of military support to be identical to the civilian crime of materials support, prohibited (and well used) under the existing federal civilian criminal law. Not good. So why is this provision in my uncertain category, rather than just plain “not so good”? Well, the Obama Administration had opposed its inclusion in the revised legislation – a battle it evidently did not win on the Hill. And Assistant Attorney General David Kris suggested last week in remarks at an American Constitution Society event in Washington, D.C., that DOJ was still studying whether or not it could be pursued as a war crimes charge. So it appears still possible the Obama Administration may decide not to exercise the authority Congress is about to give it. In the interest of lending legitimacy (not to mention legality) to proceedings overall, it would be wise to refrain. Wiser still would’ve been a decision on Capitol Hill not to include the provision at all.

The same logic applies to the Administration’s apparent failure to secure a sunset provision in the current bill. Could the military commissions continue in perpetuity, even after Guantanamo itself is emptied? The text of the bill doesn’t settle it definitively. Might the President decide to abandon the new commission system after the Gitmo anvil is off his back? Perhaps. Far better, again, would have been something that clearly limited the duration of the commission as a matter of law – so the stricture would remain no matter who is President. And so Congress’ power to establish military courts under Article I were more plainly limited to the specific exigencies of a specific war.

Finally, how broad is the scope of review on appeal of commission verdicts to the U.S. Court of Appeals for the D.C. Circuit? The 2006 military commissions legislation granted only narrow review authority to the civilian Article III courts, permitting it to review commission convictions only to determine whether the verdict was consistent with commission rules or with the U.S. Constitution and laws. Review of factual findings, for example, seemed to be foreclosed altogether. Does the new law include review as to questions of fact, as well as law? The review provision is quirky: “The United States Court of Appeals for the District of Columbia Circuit may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review, and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict.” Given the availability of review for sufficiency of the evidence, an appeals court would be hard pressed to foreclose arguments about the facts entirely. We’ll have to see how deferential the courts are prepared to be as cases start to come their way.

Posted 8:18 PM by Deborah Pearlstein [link]

Comments:

I'll stick to my comment on the original thread, but I have to add...

Bart really cracks me up some times.

Meanwhile, back in reality, here's a law article everyone should read...

Evan J. Wallach, "Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the
Gander?", Army Law., November 2003, at 18. Available HERE.

# posted by

Charles Gittings : 10:31 AM

What happened to the comments before the Revision of this post? Are they irrelevant?

# posted by

Shag from Brookline : 10:58 AM

While Deborah and I agree on some things, I must disagree with two of her statements, and slightly disagree on two other matters.

I do not believe the Fifth Amendment applies at all to the military detention, interrogation or trial of a public enemy of the United States. It simply never has, and the assertion that it might or should conveniently (for those seeking to increase rights for such detainees) ignores our entire legal history on this matter. The prohibition might not be the proper way to articulate this, but it makes the point for the courts and prevents low-level legal advisors from giving different guidance.

Unless the administration fails to articulate the law properly, I believe the courts will find Miranda warnings unnecessary regardless of where an enemy is ultimately tried. The caveat might be a detention solely by law enforcement and trial in federal district court of an individual within the scope of hostilities authorized by the AUMF. The removal of the military from the equation in such a circumstance might change the courts’ view of the matter, though it probably should not from a constitutional standpoint. I simply do not accept the logic that the Fifth Amendment has (almost?) no force at a military commission, but does in a trial of the same individual for the same offense in a different forum (unless the Constitutional rule has been codified in a rule of evidence or statutory requirement specifically applicable to that forum). If the Constitution applies at all, it applies in all forums.

(Full disclosure - I am currently writing an article that explains why the Constitution, particularly the Bill of Rights, does not govern the rights of public enemies. It also explains why courts default to, but do not always require, IHL compliance. Its conclusions are derived almost entirely from Supreme Court decisions.)

In the same vein, so long as a detainee is not subjected to torture or cruel, inhuman or degrading treatment, I would be more comfortable without a voluntariness standard. This is the way that advocates will attempt to back door Fifth Amendment voluntariness requirements (note Deborah says “coercion inconsistent with the Constitution”). If custodial interrogation is inherently coercive under the Fifth Amendment, we can all be sure that prolonged military detention and interrogation will be argued as coercive by lawyers for detainees. There will be endless litigation of this, an issue that should go to weight, not admissibility, of the evidence in these circumstances.

War is in fact legally different and there are historically different approaches to this topic under our Constitution reflected in centuries of Supreme Court case law. Fifth Amendment voluntariness, due process, and for that matter just compensation requirements do not apply when it comes to an actual (rather than putative) public enemy.

I am less concerned than Deborah with the lack of a sunset provision. Constitutionally, military commissions can survive only during an armed conflict or occupation, in this case during the life of the AUMF. (I think this is clear in Supreme Court case law.)

Finally, I do not believe Deborah accurately conveys the upshot of recent habeas cases. Apart from some unfortunate language in Judge Bates’ opinion, the level of support to hostilities is being considered by the courts as part of the determination of whether a detainee was part of an armed force or organized armed group, thereby subject to indefinite detention as a combatant or fighter. A recent ASIL insight by Faiza Patel examines the decisions and international humanitarian law (IHL) more thoroughly on this point.

This is not to say that I fully agree with the scope of those who might be subject to trial as a combatant under the MCA. I do believe there are valid concerns related to the type of support an individual provides and its proximity to an active battlefield. I think both the MCA and current detention standards are too broad, but not at all for the reasons Deborah or Faiza state.

# posted by

John C. Dehn : 11:16 AM

Miranda warnings are just a strawman. They are required when they are required. No one has ever suggested that soldiers on a battlefield should worry about it except the hypocrites who pretend this is a problem. It's just one more dodge to distract attention from the fact that the Bush administration's detainee policies were and are WAR CRIMES under US law.

# posted by

Charles Gittings : 11:47 AM

Professor Pearlstein/Charles:

Miranda warnings are a judicial creation meant to protect the People's 5th and 6th Amendment rights. Foreign enemy combatants are not part of the People and have no 5th or 6th Amendment rights, nor did they enjoy any rights under the English or US Constitutions until Boumediene created a right to habeas corpus out of whole cloth.

In re Quirin held that unlawful enemy combatants - foreign and domestic - did not have 5th and 6th Amendment rights before a military tribunal. I doubt the part of Quirin denying constitutional rights to an American citizen would or should hold up in today's Supreme Court, but the holding is well founded when applied to foreign enemy combatants.

The problems arise when we attempt to try foreign enemy combatants in our civilian courts for the first time in history. This puts into conflict military intelligence gathering and constitutional restrictions on gathering criminal evidence against civilian criminal defendants. Under the law of war, it is perfectly permissible to use all means fair and foul short of torture to coerce the captured enemy combatants to tell us what he knows. In stark contrast, our civilian criminal justice system almost without exception excludes coerced evidence. Thus, trying foreign enemy combatants in civilian courts of law presents the executive with the unpalatable choice between gathering intelligence and generally foregoing bringing war criminals to justice or foregoing military intelligence by having the FBI Mirandize al Qaeda in Afghanistan as Obama has done to allow the enemy to be tried in our civilian courts.

The solution is to follow the GCs and historical practice and try foreign enemy combatants in military tribunals with just enough due process to ensure their guilt by a preponderance of the evidence.

# posted by

Bart DePalma : 1:33 PM

Bart,

You don't need a solution when there isn't any problem in the first place -- and there isn't any statute that Congress could enact that would have any effect on Miranda in any case. This is purely a figment of Republican propaganda.

As for Quirin, it was a simple case of the Supreme Court and the President conspiring to commit murder, and that's a fact. It's one of the most disgraceful opinions in the history of the court, and shouldn't have anything to say about anything in the here and now.

# posted by

Charles Gittings : 1:59 PM

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# posted by

Joe : 3:19 PM

Useful to recall, unlike in Quirin (I'm with Scalia in thinking it a precedent not worthy of too much respect), we are often dealing with alleged enemies here.

The bottom line is that the U.S. government has certain limits to their authority (see, e.g., CG's article), limits that in some part are not just statutory or treaty related (that too) but a component of their lawful power itself. Thus, the laws of war is not just a matter of grace. It helps define the basic powers in question.

This is not just a matter of "rights" -- thus, Congress has no power to suspend habeas except for certain situations. Or, to pass ex post facto laws. Or, to enslave. Doesn't matter who it is; shades of Galatians 3:28 -- the limits of power, which implies a right, applies to all.

I would not only rest on this, but it seems to me that providing basic rights to all detained, all "persons," including a right to appeal, counsel, and other basic rights is essential to limit the power of the government to its appropriate sphere.

We need first to save our own souls ... not mistreat ... in the process, others also have rights. But, "we the people" also have a duty here. If in the process enemies get some rights, it is "necessary and proper."

# posted by

Joe : 6:17 PM

Joe:

The government has two fundamentally different relationships with the People and foreign enemy combatants warring against the People.

Given that our government is the servant of the People, we limit what the government can do to the People.

Because our government's primary duty is to protect the People from foreign enemies, we place no limit on what the government can do to foreign enemies apart from the basic reciprocal standards in the law of war.

The "appropriate sphere" of government during a war is to do everything in its power not prohibited by the laws of war to kill the enemy and destroy his property in the most expeditious manner possible until the enemy is either destroyed or surrenders.

Why would be possibly wish to make the awful process of war less expeditious and more expensive in blood and treasure by further limiting the military?

# posted by

Bart DePalma : 7:28 PM

Basic rules and limits apply. The ends justifies the means was not the rule during the Revolutionary War, and it is not now. This has both pragmatic and moral value.

As CJ Hughes, not Justice Kennedy, once noted:

the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented.

Limited government, even when "the people" are not the target, is for our benefit. This includes limits on what we can do to those in detention. In the current conflict, this can include people who have lived among us as citizens or lawful residents for decades.

Some, however, think basic rights (not all rights) are too much. Forever watchful, we must be for they include those with much more power and authority than the likes of any one of us.

# posted by

Joe : 7:57 PM

Joe said...

As CJ Hughes, not Justice Kennedy, once noted:

the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented.

Limited government, even when "the people" are not the target, is for our benefit.

CJ Hughes is referring to the essential liberties of the People and not to foreign enemy combatants.

How precisely would the People benefit by the implementation of your suggestion that foreign enemy POWs should be provided with an attorney and the opportunity to snarl our civilian judicial system in an attempt to effect a judicial escape from their POW camp?

# posted by

Bart DePalma : 8:45 PM

The detainees are not POWs, and the government has never claimed that they're POWs.

And neither have you, Bart.

# posted by

Charles Gittings : 9:46 PM

"The detainees are not POWs, and the government has never claimed that they're POWs."

But you have Charles.

In your first post in this thread you advise us to read the Wallach article, which argues that the detainees are POWs, or at least are entitled to the status and should be considered as such.

Afganistan is a real country. It's on the map. It's in the UN. It is a Geneva signatory. On 9/11 it had an army of 45,000 soldiers, and probably only a few dozen of them knew about "the planes operation" before it happened. Hamdi was a front line soldier fighting the Northern Alliance. I see no rational reason to deny him, and a lot of the other detainees, the POW status that international law requires.

For different reasons, both the left and the right would rather pretend that none of this was true. The right would prefer to call the enemy names, like "terrorist" and claim they don't deserve the status of POWs. The left wants everyone to have a trial with lawyers and such, and free everyone who cannot be charged with a crime.

Of course, during WWII only a tiny fraction of the enemy soldiers who surrendered were charged with war crimes. In every other war, we know that most soldiers are POWs to be treated honorably if all they did was to join up and fight. Unless they commit an actual war crime, combatant immunity protects them from criminal charges just for being a soldier and engaging in combat.

So just like every other piece of legislation Congress has hatched, this particular bill is not so much a compromise as a redefinition of reality so both sides get what they want. The left gets trials, but then to make that possible this legislation creates crimes that don't exist. If the Afghan government and army are redefined to be a terrorist organization, then every soldier in it instead of getting combatant immunity and POW status, now instead gets a charge of material support for a terrorist organization and a trial on this dubious charge before either a commission or a court (we don't really know which, because Obama has not made up his mind about how to close Gitmo, and this may not be the last piece of legislation we see based on these principles. The next one may have much the same content but authorize trials in an Article III court).

# posted by

HowardGilbert : 10:17 PM

Trails?

The 'military commissions' are illegal and unconstitutional -- they aren't competent to have trials. The new law doesn't change that fact.

Here is a relevant provision common to all four of the 1949 Geneva Conventions:

"The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

"Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

"Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

"In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949."

Geneva IV Civilians, art. 146.

Geneva III POWs art. 129 is identical except for the last paragraph, which is to the same effect, and reads:

"In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention."

Note that the same minimum standards apply to trials of both POWs and Civilians. There is no way that any military commission can satisfy those standards, and that makes the commissions war crimes in an of themselves.

18 USC 2441 makes it a federal offense to commit:

* any grave breach of Geneva.

* any violation of Hague IV Annex arts. 23, 25, 27 or 28.

* any violation of Geneva Common Article 3.

That's the law, and there isn't a damn thing that anyone can do to change it until the hostilities have concluded.

# posted by

Charles Gittings : 11:18 PM

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# posted by

Joe : 1:05 AM

This comment has been removed by the author.

# posted by

Joe : 1:23 AM

Charles:

The detainees are not POWs, and the government has never claimed that they're POWs. And neither have you, Bart.

Go proceed with your rants, but do not misrepresent my positions.

As I have posted on this blog repeatedly, any enemy combatant detained for the duration of the conflict is a generic prisoner of war. The Bush and now the Obama Administrations do not use the term POW because folks like you will dishonestly misuse it to claim that GC POW privileges extend to al Qaeda and other terrorists, when the text of the GCs plainly state that they do not.

# posted by

Bart DePalma : 12:41 PM

Bart,

The misrepresentation is all yours. A POW is anyone protected by article 4 of Geneva III POWs. You have never claimed that any detainee qualified as a POW, and there is no category 'generic POW' -- that's just more of your endless fraud.

Regarding those who do not qualify for POW status, Geneva IV art. 4 states:

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

"Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
The provisions of Part II are, however, wider in application, as defined in Article 13.

"Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention."

And you'll have to show me where I've ever claimed Al Qaeda detainees should be treated as POWs. What I claim is that they should be indicted and tried for their crimes.

# posted by

Charles Gittings : 2:48 PM

Charles:

Under the common law of war, prisoners of war meant members of armed forces detained for the duration of a war. This distinguished members of armed forces from common criminals.

The GCs limited the use of the term POW to members of armed forces who met the qualifications for privileges laid out in Article IV. However, by setting forth a minimum level of treatment for all captured members of armed forces and civilians in Article III, the GCs implicitly recognizes that Article IV only applies to a privileged subset of all POWs.

BTW, I never posted that you claimed Al Qaeda detainees should be treated as POWs. Frankly, your arguments are so far over in left field, I have stopped reading them and have no idea what you position is to any particular group of enemy combatants.

Stop misrepresenting my posts and we can blissfully ignore one another.

# posted by

Bart DePalma : 3:21 PM

The Geneva Conventions are the law of war Bart. I repeat: the only misrepresentation here is YOURS.

GPW art. 4 says exactly who it applies to, and it does NOT say anything that would imply a privileged subset of your contrived BS. There are POWs and there are civilians, and that's all there is.

# posted by

Charles Gittings : 3:45 PM

Stop misrepresenting my posts ...

# posted by Bart DePalma : 3:21 PM

Holy shit, Baghdad, no one misrepresents what others post more than you.

# posted by

Bartbuster : 10:52 PM

There is a very important difference between the old MCA and this new text that could change everything. The old MCA defined the term “unlawful enemy combatant” to mean “a person who has engaged in hostilities … who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” That is, members of the Taliban and al Qaeda were defined to be unlawful enemy combatants subject to trial by military commission. In the few commission trials that were held, the military judges declined to inquire into the lawful/unlawful distinction because the text of the law made that decision for them.

The new MCA (MCA 2.0?) defines privileged belligerents as persons meeting the criteria of Article 4 of the Third Geneva Convention. It then defines unprivileged belligerents as “an individual (other than a privileged belligerent) who …” [engages in hostilities or is a member of al Qaeda]. This language separates the “other than a privileged belligerent” from the term “al Qaeda” by subsections (A), (B), and (C). So while a member of al Qaeda is clearly an enemy belligerent, the question of whether he is privileged or not is now a completely independent question that must be decided in each case by the military judge before jurisdiction is established.

This is important because some of us have been arguing since the beginning that all of the Taliban forces and much of al Qaeda (at least the 055 Brigade on the front lines) were regular soldiers in the Army of Afghanistan at the time and met the Article 4 criteria. For a more detailed analysis with historical reference to the intent of the drafters in Geneva, see the Wallach article Charles referenced in the first comment.

The previous administration depended mostly on a State Department legal analysis by John Bellinger that argued that the 45,000 soldiers in the Afghan Army were really only a massed tribal militia, which if true would subject them to the four part test in GC III 4(A)(2). The Wallach article (and common sense, and contemporary descriptions from Jane’s Defense) suggest that the militias had been integrated into a regular army main force which is exempt from the four part test and is automatically covered by Article 4.

The important thing is that the question of the military status of the detainees will finally be subject to individual judicial determination. In all the previous cases, only Hamdan referenced Article 4, and he claimed protection under the “civilian accompanying the army” tests that he clearly did not meet.

Military judges will tend to favor protection under the Geneva conventions if there is any plausible argument for inclusion under Article 4. Protecting our own solders when they fall under enemy control is the most important consideration, so you have to have a pretty strong argument to exclude anyone from POW status. the
claim that an army of 45,000 light infantry in the middle of a conventional war is not protected by the Convention seems silly on its face, and the opinions of a former State Department lawyer will not count for much.

That means that most or maybe all of the upcoming Commission trials may end with a preliminary finding that the Commission has no jurisdiction over the defendant.

# posted by

HowardGilbert : 11:49 PM