My 2¢ worth on Military Commissions

This essay is partly in response to Something The Dog Said’s essay on military commissions – I did not want to hijack the discussion there.

I am both a lawyer with a bit of training in international law and an officer of our armed forces (Switzerland, depository nation of the Geneva Conventions), which colours my view in this matter.

First off, I do not see anything intrinsically wrong with military commissions; the questions I have is:

– What is the objective?

– Who will come before the military commissions?

– Why bother?

By way of background, the four conventions (and two Protocols) that today form the Geneva Conventions are not the same that applied in WWII; under the law of war in WWII, it was perfectly legal to put spies, saboteurs and partisans in front of firing squad after no more than a drum-head court martial.  Given this, I do not so much have a problem with Quirin‘s result, the problem for me arises from the Supreme’s rationalisations.

The Geneva Conventions focus on the protection of non-combatants:  Civilians and combatants who are hors de combat – wounded soldiers and captured soldiers (i.e. prisoners-of-war or POWs).  There is no actual category “unlawful combatants”, but from the system of the Conventions, it is clear that POW status is a benefit that not every individual is entitled to.

Unlike WWII-era law of war, the current law of war is no longer as formalistic:  There is no absolute need for a formal declaration of war, and there is a far greater readiness to recognise as combatants also members of “irregular formations”.  This is mainly in the Protocols, which have not been ratified by the US, but an argument can be made that they have acquired the status of Customary International Law, so is binding anyway.  Having said this, this is still very much nebulous (international law is not like tax law – the common definition of international law is, in the politically incorrect language of late 19th Century Europe, “the general principles of law recognized by civilized nations” (Art. 38 (1) (c) of the ICJ Statute)).

So what is a person who is not a combatant rendered hors de combat?  The Conventions don’t answer that.  What IS explicitly dealt with, though, is that the denial of POW status has to be the result of a process in front of a competent tribunal (and in this, the Bushies clearly violated the Geneva Conventions):

GC III [POWs], Art 5 (2):  Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [POWs], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

As a final note, it is emphatically not a crime to be a combatant.  POW camps are not prisons.  POWs are not being punished.  They are being held off the battlefield for so long as hostilities continue, and the belligerents are obliged to repatriate them once hostilities cease.  As POWs, they benefit from protections and privileges which a civilian prisoner (convicted criminal) is not entitled to.

So with that, what is the objective of the Administration for the Tribunals?

– Is it to make the GC III Art 5 (2) determination?  If so, what happens to those who are deemed POWs?  If they are deemed not to be entitled to POW status, what are they then?  (Personally, I think they are then civilians, which means GC IV applies, and they then need to be dealt with in accordance with GC IV Art 5, relating to civilians taking actions prejudicial to the security of the belligerent/occupying power or engaging in actions not consistent with the laws of war).

– Is it to render findings of guilt and order punishment?  If so, the jurisdiction of the court should be limited to actions in violation of the law of war, e.g. attacks on protected persons (civilians, wounded, medics etc.), abuse of flag of truce or Red Cross emblems.  Charges such as “material support for terrorism” or “conspiracy” don’t belong here, they belong in front of an international court or a metropolitan civilian court.

In any event, the rules of procedure of the tribunals have to guarantee a “fair and regular trial” (GC language).  It is recognised in international law that what is “fair and regular” depends very much on the circumstances, and will be different in a zone of war, civil war or occupation than it is in a time and place where the belligerent’s civilian administration is functioning normally (the neocons’ talking point that international law would require US soldiers to Mirandise prisoners is pure bullshit).

No doubt, military tribunal procedures would allow some relaxation on strict rules of evidence and so on.  But given that the US can hardly claim that Gitmo is in an active war zone where it can’t afford to conduct regular trials, and that world opinion is looking for a clear commitment from the US to the rule of law, are those “benefits” (if they are such) really worth the price?

Ultimately, of course, a tribunal of whatever description deciding on guilt MUST have the option of declaring a defendant “not guilty” – and releasing him.  If the objective is to find a way to hold someone preventively and indefinitely, then first a legal basis has to be established for doing so.  The GCs do allow for internment of civilians and allow for detention without trial of persons considered security risks, but those permissions are linked to the exigencies of combat or occupation.  They lapse once a modicum of civilian administration has been re-established.  I very much doubt the US could base indefinite detention without trial on international law.  Instituting military commissions won’t change that.

On balance, if the Administration wants to institute military commissions to expeditiously try those Gitmo detainees who are charged with committing battlefield violations of the laws of war, and those commission trials are seen to be fair and impartial AND result in some swift acquittals and releases, then I’d say that is the correct use of military commissions and I’d have no problem.

Part of this has to be, though, that there is furthermore a clear way forward on those detainees who are charged with non-law-of-war crimes (terrorism etc.).  This is the main conundrum.

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  1. would not be the case, I don’t think. Isn’t the whole case that we want to give these people a fair trial regardless of the outcome? Then …

    If the objective is to find a way to hold someone preventively and indefinitely, then first a legal basis has to be established for doing so.

    I would suggest that basis has been established under US law in many states as civil commitments for violent sex offenders.

    These laws must balance two strong interests: those of society in preventing the offender from committing further violent sexual offences, and those of the individual whose liberty is curtailed in the fear that he may, in the future, commit another offence.

    The legal precedent of such preventive incarcerations would quite naturally, it seems, translate to terrorists, wouldn’t it?

    And since the alleged war continues, at what point does one determine “the belligerents are obliged to repatriate them once hostilities cease.” The problem, as I see it, is that the shaky premises upon which this military action was built also forms the shaky premises for release. At this point, there is no legal endpoint demanding their release.

    I look forward to your legal take on this. Thanks!

    • Edger on May 28, 2009 at 5:31 pm

    in her article Obama’s Guantánamo Appeasement Plan, by Marjorie Cohn

       Mr. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Mr. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

       Even the US Supreme Court has disagreed with this part of Mr. Obama’s proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

       Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of US law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

  2. On balance, if the Administration wants to institute military commissions to expeditiously try those Gitmo detainees who are charged with committing battlefield violations of the laws of war, and those commission trials are seen to be fair and impartial AND result in some swift acquittals and releases, then I’d say that is the correct use of military commissions and I’d have no problem.

    Can’t these outcomes be achieved with the courts we already have?

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