Thursday, October 08, 2009
Appellate Review of Military Commissions
Eugene R. Fidell
In the coming weeks there will be no shortage of analysis of the military commission provisions that have emerged from the conference committee on the National Defense Authorization Act. As good a place as any to kick off the discussion here on Balkinization is the bill’s provisions for appellate review of military commission trials. The appellate process will include automatic, but waivable, review by a “United States Court of Military Commission Review” followed by appeal as of right to the United States Court of Appeals for the District of Columbia Circuit, with the usual opportunity for Supreme Court review on writ of certiorari. If you think this is just fine, here are three points to ponder.
The two tier approach suggests the desire to treat these people differently. Since I think too much of that is going on now, it makes me wary.
But, at times, disfavored alleged enemy aliens very well might require special protections. An ordinary service person has possible political means of relief that the former class does not.
Thanks also for leaving open the comments. These guest posts are appreciated but tend to be shy and not allow comments.
The text of the bill is available on the PEGC web site here:
The difference is simple: the intent is to prevent the accused from getting a fair trial in a real court of law. These commissions are war crimes in violation of Hague 1907, Geneva 1949, 18 USC 2441 (war crimes).
They are also unconstitutional inasmuch as they amount to bills of attainder and a usurpation by congress and the executive of the Art. III jurisdiction of the courts.
I've been impressed over the years with the attorneys, many of them from large law firms as well as those associated with ACLU, offering pro bono legal defense-services to aliens before our courts and military commissions. The costs for such pro bono services are quite expensive. I wonder to what extent such high costs serve to limit the defenses that can be made available to such aliens, especially with military commissions as opposed to Article III courts that such attorneys may be more familiar and comfortable with, and whether such limitations are intentional on the part of government to diminish the ability of such attorneys to provide appropriate representation to such alien-clients.
These questions are not all that difficult:
1) Congress provided enemy combatants with a cadillac appeal process to gain Dem votes to pass the legislation.
2) Congress designated the DCA to serve as the intermediate appellate court because it had been wresting with these issues for years and because it actually followed the intent of Congress in the DTA.
3) Providing unlawful enemy combatants with greater rights than our soldiers can in no way be defended. However, the GOP needed Dem votes and the Dems wanted to provide even more rights to the enemy.
Well, so much for any interesting legal issues. It's just all partisanship and politicking all the time.
So glad to have that cleared up.
There are actually some very interesting legal issues here -- they're just buried under an enormous pile of BS generated by the government and the Republicans.
See my blog articles...
18 USC 2441
Boumediene and 28 USC 2241(e)(2)
Come to think of it, you'll find plenty of relevant analysis on Gene Fidell'sNational Institute of Military Justice (NIMJ) website.
Congress considering complex legal issues? Most of these people do not even read the bills before voting on them. Politics is the main impetus for everything Congress does.
To be honest, my comment was in response to your comment, not to the OP.
I would love it if we could discuss the legal issues here.
Today's (10/15/09) WaPo has an editorial titled: "Detainees on Trial. Congress takes another crack at remaking military commissions." It supports the bill now pending in the Senate. The editorial does not, however, address the concerns of this post regarding US military personnel having less rights than the detainees. Perhaps as a sense of justice that should be a next step. But that doesn't mean that this bill should not pass.
Excellent post! I was not aware until now of these limitations on judicial review by Article III courts of court martial judgments.
I assume, however, that regardless of any of that, imprisoned court martial convicts can always file a writ of habeas corpus in district court, correct?
PhysioProf, while a convicted servicemember whose liberty is being deprived can file a petition for writ of habaes corpus in U.S. district court, those courts apply an extremely constrained scope of review. In the 10th Circuit -- which, as home of the USDB, is probably the leading circuit in this area -- essentially any issue raised in the course of appellate review is deemed fully and fairly decided and thus ineligible for second guessing on habeas. Any issue that could have been raised on appeal but wasn't is deemed waived. This results in a Catch-22 that makes obtaining relief almost impossible.
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