About Military Commissions

( – promoted by buhdydharma )

Last week the President made a speech about the closing of Guantanamo Bay Prison. Most of us politically savvy (obsessed?) folks have heard it and heard some of the various analysis of it. One area of concern was the President’s contention that, due to factors which happened in the previous administration, he might not be able to try all of the accused prisoners in Federal Courts as he had previously promised. He went further to saying he thought that a revamped Military Commissions structure could be used to do the job, and thus avoid trying these men in Federal Court.  

This has lead to a lot of consternation on the left side of the Blogosphere. The Dog thought it would be worthwhile to take a look at the role Military Commissions have played in the United States since prior to success of our rebellion against the British Crown.

The first thing we need to do is understand that whatever the structure the President is thinking of it will not be the same as the one developed under the criminal Bush Administration. It is easy to for us to jump to the conclusion that the President is being lazy or disingenuous when talking about using a Military Commission, but the Dog, at the risk of being accused of drinking the Obama-aid, does not find our President to be lazy in rule of law issues. Over cautious, yes, massively process minded, surely, frustratingly willing to let the system grind on until it can’t move forward without intervention, god’s know, but not lazy or disingenuous. This points towards him actually taking the steps to make the Bush Era Military Commissions, which he so rightly criticized as a candidate, meet constitutional muster.

The United States has used military commissions to try enemy soldiers and spies since the days of General Washington. That said, you should cross our first presidents use of them off the list. The newly formed Untied States was in a State of War and as such did not have a good judicial system set up (though it was covered in the Articles of Confederation) and in any case could not be sure if they would win or lose. This made it appropriate for the Military which was prosecuting the Rebellion to provide judicial services in the war zone.

In later wars the US also used Military Commissions (MC) to prosecute those who broke the Laws of War. These laws were developed by the Untied States and further went on to evolve into the Geneva Conventions. War Crimes were generally intentional crimes against non-combatant civilians and crimes where the enemy acted unlawfully. This unlawfulness is defined as failing to wear uniforms or carry weapons in such a way as to make it clear a person is a solider and not a civilian.

The US law which still primarily controls MC is a Supreme Court Case called Ex Parte Quirirn. This case dates back to World War II. The facts of the case are as follows:

A group of German soldiers, trained in sabotage, were landed in the US after the US had declared war on Germany. They came ashore in uniform, with explosives and other tools of sabotage. They then buried the uniforms and tools and in civilian dress spread out into the US. They were captured and President Roosevelt in 1942 ordered that a Military Commission be set up to try them. He further ordered that anyone who acted as they did (clandestine entry into the country, hiding uniforms, acting for an enemy we were at war with) would be tried by a MC and would not, even though they were held in the US and we had a functioning Judiciary, have access to US Federal Courts.

The defendants appealed to the US Court of Appeals to be able to file writs of habeas corpus. The Appeals Court denied there right to do so and they filed for a decision from the US Supreme Court.

The Supreme Court met in special session to decide not if they should be granted the habeas petition, but if the Court of Appeals erred in saying they would not accept the petitions at all.

The main contention of the defendants was that the Constitution did not specifically invest in the President nor was there statutory power given to him by the Congress to create Military Commissions and decide that people meeting certain criteria would be tried only in those Commissions. This meant under the 5th and 6th Amendments that they must be tried in Federal Courts.  The main difference being that in Federal Courts the defendents would have access to trial by jury.

Justice Stone writing for the Court said:

The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President’s Proclamation undertakes in terms to deny such access to the class of [p25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that, if they are enemy aliens or if the Proclamation has force, no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners’ contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. As announced in our per curiam opinion, we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. We pass at once to the consideration of the basis of the Commission’s authority.

Since the Presidents proclamation did not prohibit review by the US Courts of the actions in the case and the case itself, it did not operate outside the US law. This is an area where President Bush’s MC got into big trouble. They included a provision for the Federal Courts to be unable to in any way review the cases or the applications for habeas.

The Court further found that while the Constitution did not specifically provide for this option, it did give both the President and the Congress wide latitude, Justice Stone again:

Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to “provide for the common defence.” As a means to that end, the Constitution gives to Congress the power to “provide for the common Defence,” Art. I, § 8, cl. 1; “To raise and support Armies,” “To provide and maintain a Navy,” Art. I, § 8, cl. 12, 13, and “To make Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14. Congress is given authority “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” Art. I, § 8, cl. 11, and “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” Art. I, § 8, cl. 10. And finally, the Constitution authorizes Congress

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Art. I, § 8, cl. 18.

The Constitution thus invests the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war.

This case is where a lot of the spurious power grabs of the criminal Bush Administration came from. They made a massive deal of the Presidents Executive Authority, though they always failed to notice it was tied to a deceleration of war. While we had a state of war in Iraq and Afghanistan, there was never a declaration of that state by Congress. Instead they gave the Authorization for Use of Military Force. This made President Bush’s claim of sweeping executive authority weaker and is likely the reason the Bush Administration just tried to brazen it out.

The basic holding of the Court was, in times of war, it is appropriate for the Government to be able to try belligerents who act to break the laws of war, or attempt to do so. As long as those being tried are considered belligerents and are subject to the exemption in the 5th Amendment of  “cases raising in land or naval forces”. This exemption is placed on our soldiers but is also extended to those soldiers of the enemy we capture in the course of military action.

So, that is where the law stood prior to the criminal Bush Administrations desire to have extra legal detention and trials. They ran aground of so many issues, including the lack of ability to actually determine if the men we are holding were really enemies of the US or just people swept up for rewards on the field of Afghanistan and Iraq.

In order for President Obama to have MC that will pass muster it seems to the Dog there must be several things changed in the current MCA structure, in order to make it match the findings in Quirin:

First we must establish anyone tried is an enemy of the United States. This is the thorniest of the problems as Al-Qeada and the Taliban have never worn uniforms and having and impartial evidence based determination is going to be very difficult.

Second, the MC themselves must be reviewable and have some mechanism which would allow other Courts to overturn or overrule the decisions of the MC. This can be accomplished with access to Federal Appeals and Supreme Courts.

Third we must determine if our current actions in Afghanistan and Iraq legally constitute a declaration of War. It seems without this piece the argument for not trying these men in Federal Court completely falls apart.

Forth, and the President has already been clear on this, there can be no use of evidence obtained under torture. This alone is likely to complicate the prosecution of many in custody. It also leads to other issues which have to be resolved prior to trial, such as what act and combination of acts was in fact torture and what we are doing in terms of punishing those who ordered an committed those tortures.

To sum up, the Dog thinks it is clear there is ample precedent  and case law to allow Military Commissions to be ordered by the President or Congress, but up to now we have come nowhere close the level of legality required of these Commissions to meet our standard of law. It will be very important to keep this fact first and foremost in judging the Presidents plans for MC, if he does decide to employ them. They are not, out of hand unconstitutional, but the way they were devised and deployed by the criminal Bush Administration was.

This is how the Dog sees it, but he is not an attorney, so he may be off base. One bit of housekeeping. The opinion in Quirin was provided by the Legal Information Institute, you can find the whole thing here .

The floor is yours.

Cross Posted At Square State


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  1. is not allowed in Military Commissions. If we keep assuming the President is going to use the flawed Bush versions we wind up fighting against the wrong thing.  

  2. The Supreme Court in Boumediene (2007) has already ruled that detainees are entitled to habeas corpus petitions.

    The case challenged the legality of Boumediene’s detention at the Guantanamo Bay military base as well as the constitutionality of the Military Commissions Act (MCA) of 2006. Oral arguments on the combined case were heard by the Supreme Court on December 5, 2007. On June 12, 2008, Justice Kennedy wrote the opinion for the 5-4 majority holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the MCA was an unconstitutional suspension of that right.

    While not completely foreclosing the possibility of a military commission a la Quirin, the court did set some fairly substantial procedural hurdles that were not met by the MCA.

    • Edger on May 27, 2009 at 19:54

    and really good article, Dog. It will definitely be interesting to see what Constitutional Lawyers have to say about the changes Obama will make to the MCA, although Greenwald for one seems to be strongly opposed to it.

    I think that a good part of the opposition stems from the fact that Obama has indicated that he wants to keep in some amended form the Bush Military Commissions Act, and although you are right that Military Commissions have been used for many years, they were not the commissions defined by that act…

  3. Great diary.

    I can accept MC if it is an open process that allows the public, and the accused, a way to examine the evidence.

    The fact that Bush/Cheney tainted this issue too speaks to the enormity of their war crimes, and why we must hold them accountable.

    • lysias on May 27, 2009 at 20:42

    If the saboteurs had been tried in a regular court, they would have been subject to only fairly short prison terms for attempted sabotage, and the dismal performance of the FBI in catching them would have become public knowledge in the midst of a war that was still not going very well.

    The Supreme Court felt obliged to uphold Roosevelt’s high-handed action in setting up the military commission, because public feeling was high, and Roosevelt threatened to go ahead and execute them anyway, no matter what any court said.  (In the end, the military commission commuted the sentences of two of the saboteurs, who were cooperating with the government, to life imprisonment.  The others were executed within days.  And the two in prison were released shortly after the war ended.)

    In other words, it’s a terrible precedent.

    • lysias on May 27, 2009 at 20:42

    If the saboteurs had been tried in a regular court, they would have been subject to only fairly short prison terms for attempted sabotage, and the dismal performance of the FBI in catching them would have become public knowledge in the midst of a war that was still not going very well.

    The Supreme Court felt obliged to uphold Roosevelt’s high-handed action in setting up the military commission, because public feeling was high, and Roosevelt threatened to go ahead and execute them anyway, no matter what any court said.  (In the end, the military commission commuted the sentences of two of the saboteurs, who were cooperating with the government, to life imprisonment.  The others were executed within days.  And the two in prison were released shortly after the war ended.)

    In other words, it’s a terrible precedent.

  4. I hardly log on anymore, so my view is jaundiced by too much sunshine and too little sophistication…

    …but this is my historical question set.  If you run an extra-legal prison camp which engages in torture for eight years (actually, several of them)…what is the legal frame for trying the survivors of this experience?  Can they be accounted genuine threats to anyone?  What is the moral frame?  What stories do you strengthen, by continuing to hold the prisoners out as being so bad that special rules are required for their trial?  

    In the context of your realistic and historical analysis, sure…the US has done this before.  And as you are both a constitutionalist and a patriot (I am neither one) your frame is sensible.  But from my perspective…the opposition is not strictly in terms of the constitutional merits, but the overall vile absurdity of the thing.

    • halef on May 27, 2009 at 23:45

    I agree with Lysias – Quirin is a dreadful precedent, but Dog is right that the one element in Quirin that is missing here is the formal declaration of war.

    Another awful precedent is Yamashita, where the Supreme Court essentially acquiesced to the judicial murder (through the means of an MC) of a Japanese officer by a petty and vindictive MacArthur.  Yamashita was extensively quoted by that empathetic and talkative Supreme Court luminary C. Thomas in his dissents to Boumedienne etc.

    On the other hand, the “lesser” Nuremberg cases (like Altstötter) were also tried in front of an MC.

    As a footnote, Dog: The US did not develop the law that ended up in the Geneva Conventions.  The origins of the modern international law go back to the Thirty Years’ War (Hugo Grotius, de iure belli ac pacis).  The main precursors were the Hague Conventions, in which Russsia was one of the main movers.  HOWEVER, it is mainly thanks to the US (Eleanor Roosevelt) that the UN was formed and provided a superstructure for the Geneva Conventions.

  5. is related to your point about deciding whether or not members of al Qaeda are “enemies” is the legal sense. I don’t see how they can be determined as such, being stateless, un-uniformed, relatively heirarchless actors. They are much more akin to international drug gangs or the Mafia than they are to the German saboteur case you outlined above.

    In which case, what kind of precedent does this set? Are we to use MCs against Mexican cartels? How about international finance crimes? The list of possible uses is endless when first you apply this thinking to al Qaeda.

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