Volume 43 | Number 1 Fall 2007
Footnotes
For complete footnote citations, download the PDF.
Of the many controversial legal issues surrounding the passage of the Military Commissions Act of 2006,1 one of the most fundamental is that of jurisdiction. Lingering just beneath the surface, the question of jurisdiction calls the legitimacy of these tribunals to try alleged al Qaeda operatives into question. Unfortunately—or perhaps fortunately for those advocating the use of these tribunals—the seminal challenge to the validity of the Military Commission, Hamdan v. Rumsfeld,2 was resolved in favor of the Petitioner without reaching this underlying question. However, the rapid response by Congress to provide a statutory foundation for resurrecting this means to try detainees associated with the Global War on Terror3 once again raises this difficult but critical question related to the legitimacy of such trials.
My symposium presentation focused on this issue. I acknowledged that in theory, the use of a military commission to try certain al Qaeda detainees represents a legitimate progression of the law of war.4 However, I also asserted that the jurisdiction established by Congress exceeds the scope of the legal mooring from which the authority of a military commission is derived. This assertion, however, raises an equally fundamental question associated with the military commissions: who, or which branch of our government, should decide the legitimate scope of such jurisdiction? I will address each of these points below.
In October of 2001, few legal scholars had analyzed—much less heard of—military commissions. Since that time, the military commission has become the subject of intense scholarly and pragmatic interest. Mentioned nowhere in the Constitution, these are unique tribunals, established outside the normative umbrella of Article III.5 Instead, the authority for the creation and use of military commissions is derived exclusively from the laws and customs of war.6 The Supreme Court of the United States has recognized this fundamental source of authority in every case addressing the legitimacy of such tribunals from Ex parte Milligan7 and In re Quirin8 to its most recent foray into this unique realm of law, Hamdan v. Rumsfeld.
But unlike prior invocations of the authority to establish and utilize military commissions, President Bush’s decision to do so exposed one of the most controversial uncertainties relating to the laws of war: when, and to whom, do they apply?9 During the fifty-plus years following the revision of the Geneva Conventions of 1949,10 this question became relatively transparent due to “policy” based applications of legal principles by armed forces of many nations. Yet it lay at the very core of the legitimacy of the Bush administration decision as the result of a simple but profound truism: as a creature of the laws of war, only individuals subject to that law should fall within the legitimate jurisdiction of such tribunals. This truism was clearly recognized by the Bush administration when, in the President’s Military Order establishing the military commissions in November of 2001,11 the President invoked the authority of the law of war by use of the following language:
International terrorists, including members of al Qaeda, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.12
Essential to this presidential finding is the use of the term “armed conflict.” As many scholars who began to explore this issue soon learned, this term is synonymous with the statement “the laws of war apply to this fight.”13 Because al Qaeda, the identified opponent to the United States, is neither a state entity nor an internal dissident group, the invocation of this body of law seemed inapposite to the then well accepted triggering criteria for such application.14 Nonetheless, in the years following the initiation of the U.S. proclaimed Global War on Terror, many legal experts—both within and outside of government—began to reconsider this triggering paradigm.15
As I have written elsewhere and stated during the symposium, I believe that despite appearing to defy the “Article 2/3” triggering paradigm established by the Geneva Conventions,16 the application of the laws of war to the military component of the struggle against al Qaeda is legitimate. Nothing in these treaties indicated that this paradigm was the exclusive triggering criteria for applying the principles of the law underlying these treaties, such as distinction, humanity, and military necessity. Such a stoic and inflexible interpretation of this law is inconsistent with the fundamental premise of regulating armed conflict: balancing the invocation of the necessities of war with the dictates of humanity. Accordingly, I believe a more appropriate trigger for these basic balancing principles is the existence of armed conflict de facto, and while defining the existence of such situations is undoubtedly laced with uncertainties, a broad application of the law seems more consistent with the purpose of the law than an interpretation that permits the conduct of combat operations absent a legally mandated regulatory framework.17
Because of this, I believe that in theory the use of a military commission to try individuals captured during military operations conducted under the rubric of the Global War on Terror is legitimate. When such individuals hold themselves out as warriors, and conduct operations of the scope and complexity as the attacks of 9/11, or the attack on the USS Cole—operations resulting in a combat military response—they should be held accountable for violating the most basic principles of the laws of war. However, this conclusion leads to equally basic criticisms of the U.S. invocation of the authority to try individuals by military commission—both by the President in the original Military Order No. 1 and by Congress in the MCA.18
The first of these criticisms is what I have often referred to as the United States’ unwillingness to take the proverbial bitter with the sweet.19 If the law of war provides the United States with the authority to try individuals by military commission, it also imposes on the United States certain fundamental obligations associated with such trials. This concept was, in my opinion, at the heart of the Supreme Court’s analysis in Hamdan v. Rumsfeld, when it held that the United States was bound to comply with the minimum trial protections afforded by the substance of Common Article 3 of the 1949 Conventions.20 The Court’s analysis of the application of this treaty provision, while controversial, reflected the more pragmatic view of the laws of war discussed briefly above—that obligation and authority are indivisible. In regard to this criticism, I believe that the MCA has made substantial improvements over the previous unilateral Executive branch approach to the commissions. In my opinion, the most significant change reflected in the MCA is the creation of a judiciary with guarantees of independence analogous to those of the traditional military justice system.21 However, other provisions, such as those permitting the use of coerced self-incriminating statements,22 are undeniably a regression.
Curing procedural defects, however, is only one aspect of assessing the legitimacy of the military commissions. Even conceding arguendo that the laws of war are appropriately applied to the war on terror, it is the scope of jurisdiction established by the MCA that, in my opinion, raises the most significant questions as to the legitimacy of the statute. As a creation of the laws of war, the jurisdiction of a military commission must be limited to violations of the law-of-war provisions applicable to the relevant conflict. This qualifier provided very little limitation in the realm of state versus state, or international armed conflict—for such conflicts brings into force the full corpus of the laws of war. However, this is not the case in the realm of non-state, or non-international armed conflict. Instead, these conflicts trigger a much narrower core of fundamental principles regulating warfare, and only offenses derived from these principles fall within the jurisdiction of a military commission convened in response to such conflicts.23
Exceeding the scope of this limited jurisdiction raises a very troubling question: what is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a “convenient” forum to adjudicate crimes that do not fall into this category, or worse, did not exist when the commissions were created? A review of the punitive articles of the MCA and the elements for the crimes established by the new Manual for Military Commissions24 suggests that the primary motivation was the latter, and not the former interest.
In addition to the procedural provisions established for military commissions by the MCA, the statute includes those offenses subject to trial by these tribunals. Emulating the Uniform Code of Military Justice, this section of the statute codifies what are referred to as the punitive articles—the part of the statute establishing the actual offenses available to the military commission prosecutors.25 There is no “nature of conflict” qualifier to the availability of any of these offenses. Accordingly, once an individual is designated subject to trial by military commission in accordance with the jurisdiction provisions of the MCA,26 there is no requirement that prosecutors prove that certain offenses occurred within the context of an international armed conflict. This clearly indicates that all offenses established by Congress in the punitive articles apply to individuals designated for trial by the military commission.
This approach may have been intended to eliminate any questions related to the appropriate subject matter jurisdiction of the military commissions. Nonetheless, merely stating that the offenses enumerated in the statute are applicable to any armed conflict does not eliminate the theoretical and pragmatic challenges to this assertion. Indeed, as I noted at the symposium, even a cursory review of the offenses established by the Punitive Articles expose the continuing government effort to “square the circle” by characterizing offenses that would normally be domestic criminal offenses as violations of the laws and customs of war. Even with regard to offenses codified in the Punitive Articles that are well accepted violations of the laws and customs of war, the universal applicability of these offenses to any armed conflict represents an overly broad assertion of jurisdiction.
The effort to avoid this jurisdictional issue is reflected in the introductory provisions of this section of the Act, which indicates that the purpose of the statute is to “codify offenses that have traditionally been triable by military commissions.”27 In addition, in an obvious attempt to avoid any nulle crimen challenge, the statute asserts that it “does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.”28 However, because the jurisdiction of military commissions has historically been derived from the laws of war,29 jurisdiction has also been historically limited to violations of the laws of war.30 This limitation was clearly recognized by the Court in Hamdan when it emphasized that “[n]ot only is its jurisdiction limited to offenses cognizable during time of war, but its role is primarily a fact-finding one to determine, typically on the battlefield itself, whether the defendant has violated the law of war.”31 Accordingly, the reference in the statute to “offenses that have been traditionally triable by military commissions,” when coupled with the “no new offenses” language, must be understood to refer to recognized violations of the laws and customs of war.
The actual enumerated offenses, however, seem to stray far from this jurisdictional mooring. They include not only the offense of conspiracy32 (considered to be invalid by a plurality of the Hamdan Court), but other inchoate offenses,33 offenses against the judicial process,34 terrorism,35 hijacking,36 and material support to terrorism.37 None of these examples can legitimately be characterized as “traditional” war crimes. Rather, these offenses are “traditionally” considered violations of domestic law.38 Vesting the military commission with jurisdiction over offenses such as these is inconsistent with the assertion that the statute merely codifies those offenses previously triable by military commission. Even if such offenses did reflect established violations of the laws and customs of war applicable during international armed conflicts, extending them to the realm of noninternational armed conflict is particularly troubling.
Determining which offenses apply to non-international armed conflicts has been controversial since the inception of the International Criminal Tribunal for the Former Yugoslavia.39 One of the original challenges to the subject matter jurisdiction of that tribunal was the defense’s assertion that the limited regulatory provisions of the laws of war applicable to such conflicts could not be relied on as a basis of international criminal liability.40 The tribunal rejected this assertion.41 However, the tribunal, in emphasizing that “offenses” derived from this limited source of international regulatory norms did not constitute a wholesale transplant of offenses applicable to international armed conflicts, rejected the prosecution’s assertion that individuals could be tried for “grave breaches” of the Geneva Conventions for misconduct during non-international armed conflicts.42 Accordingly, the tribunal concluded that as it related to non-international armed conflicts, its subject matter jurisdiction extended to: violations of the principles reflected in Common Article 3 (the baseline humane treatment mandate of the law of war); specific treaty provisions applicable to the belligerents (such as Additional Protocol II to the Geneva Conventions); and a finite number of fundamental regulatory principles derived from custom, such as the prohibition against indiscriminate attacks.43 In a seminal conclusion, the Tribunal indicated that
[n]otwithstanding these limitations, it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities.44
Had Congress confined the jurisdiction of the resurrected military commissions to an analogous narrow list of offenses, I believe the end result would have been far more legitimate. Instead, the drafters of the MCA seemed to adopt the “wholesale transplant” approach rejected by the ICTY. What is truly frustrating about such an approach is the reality that the most egregious conduct associated with al Qaeda could almost certainly have been charged under the more limited list of offenses accepted by the international community as applicable to non-international armed conflicts. For example, attacks on the World Trade Center could be charged as violations of the Common Article 3 prohibition against murder or as an indiscriminate attack in violation of applicable customary norms.45
It is, of course, understandable why a more extensive scope of jurisdiction was desired by the drafters of the MCA. A more comprehensive list of available offenses would invariably facilitate prosecution before the commissions, thereby sparing Article III courts the difficulties associated with such cases. But this justification seems insufficient to warrant such a departure from accepted norms of international criminal law, particularly when there remains serious debate over the prima facie issue of whether the struggle against international terrorism qualifies as an armed conflict. The reality that Article III courts have dealt with similar cases further exacerbates the criticism of such a motive.
Nor is such an expansion consistent with the tradition of arms. One rationale for the use of military tribunals to adjudicate battlefield misconduct has historically been that members of the profession of arms are uniquely suited to judge such violations.46 Vesting the commissions with jurisdiction over offenses beyond the special competence of the profession of arms and the imperative necessity that some argue is the sine qua non of military commission jurisdiction,47 raises the troubling inference that facilitating the desired result, rather than special necessity, is the principal purpose of the statute.
This overreaching has been exacerbated by establishing regulatory definitions of certain offenses provided in the statute. Such a process of subsequently defining offenses is, theoretically, consistent with the existing military justice system.48 It seems understandable, therefore, that the recommendations by senior military legal experts to emulate established courts-martial procedures also resulted in the explicit grant of authority in the MCA for the development of rules to implement the statute. These rules were published as the Manual for Military Commissions, or MMC.49 Like the Manual for Courts-Martial,50 the MMC puts the proverbial “flesh on the bones” of the MCA. It provides pre-trial, trial, and post-trial procedures for the trial of alien enemy combatants.51 It also provides the elements for the offenses established by the MCA, articulating the elements of proof for each statutory offense. Because this method of articulating proof requirements is also used in the Manual for Courts-Martial, clarifying the elements of proof through such a process would be considered unremarkable for military practitioners. What is remarkable, however, is how the MMC actually appears to transform the nature of the offenses it purportedly clarifies—an effect inconsistent with that of the Manual for Courts-Martial.
One clear example of this transformation is with the offense of killing a protected person.52 Under the MCA, the offense is defined as follows: “[A]ny person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct.”53 However, the MMC defines the elements of this offense as follows:
(1) The accused without justification or excuse, intentionally and unlawfully kills a protected person; (2) The accused knew or should have known of the factual circumstances that established that person’s protected status; and (3) The killing took place in the context of and was associated with armed conflict.54
Thus, the “intent” element of this murder offense under the MCA is transformed into “should have known,” or a negligence element under the MMC.
By limiting the requirement to prove the mens rea of intent to the act of killing, the MMC’s articulation of elements raises the serious question of whether the nature of the statutory offense has been fundamentally altered. According to the MMC, it is not necessary that the government prove that the accused had knowledge of the victim’s protected status despite the offense being defined as an “intentional killing of a protected person.” Instead, the government need only prove that the accused was negligent with regard to the victim’s status. Pursuant to the elements established by the MMC, so long as the accused knew or should have known of the victim’s status, he may be guilty of this offense. Reducing the defendant’s mens rea to negligence on this point makes the path to a murder conviction easier for the government to prove. However, it also seems to transform an offense that is properly derived from the law of war—the intentional killing of a protected person—to an offense beyond the scope of that source by eliminating the requirement of knowledge of the victim’s status. In short, by manipulating the definition of the crime of Murder of a Protected Person established by the MCA, the MMC has converted negligent homicide to the offense of murder.
This example of the MMC clearing the path to convict detainees is both telling and troubling. Making the victim’s status an aggravating factor, or an element of a particular offense, is by no means unprecedented. Indeed, the Uniform Code of Military Justice establishes several crimes for which the status of the victim serves as an aggravating factor. Examples include: assault on an officer or non-commissioned officer,55 assault on a sentinel or look-out,56 disobeying a superior officer,57 and disrespect towards a superior officer.58 However, all of these offenses require the prosecution to prove that the accused knew the victim’s status. Likewise, with the offense of premeditated murder, one possible aggravating factor which could warrant a sentence of death is the victim’s status as an officer, non-commissioned officer, or law enforcement official in the performance of his or her duty.59 In order to prove any of these aggravating factors, the prosecution is required to establish that the accused knew of the victim’s special status. By abandoning the requirement of proof of knowledge in favor of what amounts effectively to a negligence standard on this issue, the MMC is departing not only from the UCMJ’s long-established proof requirements, but also from the most fundamental precepts of American criminal law itself. Considering that proof of actual knowledge could almost always be satisfied by inference derived from the condition of the victim, this modification is also somewhat perplexing. For example, proof that an enemy combatant killed a U.S. soldier rendered hors de combat by wounds would itself establish a powerful inference that the enemy knew the victim was “protected” as a result of no longer being able to resist and being at the mercy of his enemy. Similar logic would apply to any attack directed against unarmed civilians.
There is no authority in the MCA for the Department of Defense to redefine and lessen the proof requirements of the statute. If the MCA represents the codification of existing crimes under the law of war—which is itself a questionable assertion—it appears that to convict an accused for violating this prohibition, Congress required that the prosecution prove the elements of the statutory offense, not the diluted elements established by the MMC. Yet, with sleight of hand, the MMC, without citation or reference to any legal authority, appears to alter the proof requirements of some offenses; in the case of Murder of a Protected Person, an offense that carries the penalty of death.
By disconnecting the offenses available for trial by the military commission from a solid mooring to the laws of war, the commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes the MCA may have implemented, the question of legitimacy will persist until the offenses available to the government under the MCA genuinely reflect the offenses created by the law from which the authority for the use of such commissions is derived. Until then, the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.
While extremely troubling, this conclusion leads directly to an equally fundamental question: what branch of our government is best suited to decide which crimes are heard by the military commission? This question involves the very complex issue of legislative competence to define violations of international law. Such competence seems to be explicitly granted to Congress by Article I, Section 8, which vests Congress with the power “[t]o define and punish piracies and felonies committed on the high seas, and offenses against the law of nations,”60 and to make all laws necessary and proper to carry into effect the power granted to the federal government. It is debatable, however, whether Congress is empowered to “define” a crime as a violation of the law of nations despite the fact that the international community does not recognize such violations. From a Constitutional perspective, the coordinated actions of the legislative and executive branches—based on the expert advice of military legal experts—seem to bolster the legitimacy of such definitions. Nonetheless, when exercising such power conflicts with international criminal jurisprudence directly on point, the legitimacy of these definitions appears less tenable.
The question of legitimacy turns on how far afield from American legal precedent and the norms of international law Congress has strayed. It may be up to the Article III judiciary to resolve this issue, but two observations remain relevant. First, the cooperation between the political branches of the government based on expert military advice reflected in the MCA supports the executive position and will make challenges to the commissions’ jurisdiction difficult. Second, regardless of how difficult this challenge might be, the zealous efforts of the military and civilian defense bars will continue to expose the flaws in the MCA.
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Footnotes
For complete footnote citations, download the PDF.