Al-Qaeda is Not O.J.
By Henry Mark Holzer
At the end of the Supreme Court’s 2005-2006 term last June, the Hamdan decision took a slice out of presidential power by eviscerating the military commissions President Bush had established to try Islamic terrorists. Ostensibly, the Court’s reason was because the tribunals had not been authorized by Congress
In response, only recently did the Administration get around to offering a proposal to Congress to satisfy what the White House thought the Court wanted. From a negotiating perspective, the proposal was a disaster, opening with the offer to provide counsel to accused Islamic terrorists, to allow them to produce evidence, to call witnesses, and to remain silent.
Then, to make matters worse, Bush ran into a guerilla war launched in the Senate by Republicans McCain, Warner, Graham, and Collins. Their tuncated notion of what appropriate military tribunals should be did even more damage.
Much posturing and in-fighting ensued, adding yet again to the perception that America was soft and lacked the will to do what is brutally necessary to deal with Islamic terrorists whose every breath is devoted to destroying us.
That perception has now become reality.
On September 27, 2006, the House of Representatives passed the Military Commissions Act [MCA] of 2006. The next day the Senate followed suit with its version, which differed from the House’s only in minor, non-substantive ways. Procedurally, the House approved the Senate version on September 29, 2006. The President is expected to sign the bill immediately.
While Rep. Duncan Hunter, R-CA, Chairman of the House Armed Services Committee, where the bill originated, seemed to understand that “[w]e are dealing with the enemy in war, not defendants in our criminal justice system,” and went on to say that “[i]n time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops,” that, and much more, is what he and his colleagues gave us in the MCA. And it’s not just the rules of evidence that Congress and the President have given away.
About the Republican victory in the Senate, Majority Whip Mitch McConnell, R-KY, similarly acknowledged that “[w]e are not conducting a law-enforcement operation against a check-writing scam or trying to foil a bank heist. We are at war against extremists who want to kill our citizens, cripple our economy and discredit the principles we hold dear—freedom and democracy.” Unfortunately, the MCA belies McConnell’s view of just what kind of an “operation” America is conducting, and contains too many provisions that negate the fact that we are, to quote the senator, “at war against extremists.”
There will be much discussion about the MCA and its many provisions. Liberals will complain that it violates the human rights of those to be tried by military commissions. Conservatives will complain that it provides the defendants with too many procedural rights.
While much conservative criticism will be justified, the overarching calamity of the MCA is apparently still not grasped by Hunter, McConnell, and other Republicans. The MCA has institutionalized the Clintonesque view that accused terrorists, not members of an identifiable regular army, are simply a problem to be dealt with by the criminal law—e.g., the first World Trade Center bombing, Kenya and Tanzania, the U.S.S. Cole—and not a purely military issue to be handled in Department of Defense-conducted proceedings with a minimum amount of procedural niceties.
The MCA, which amends Title 10 of the United States Code to add a new Chapter 47A, consists of seven subchapters. (In this article, unless otherwise noted I will use the original House version [HR 6166] for purposes of discussion, rather than the virtually identical senate version, that was subsequently passed by the House.)
The Senate version contains “Findings,” the obvious purpose of which is an attempt to build on the Hamdan decision’s requirement of Congressional authorization, and, while at it, to establish Congressional supremacy over military commissions:
Congress makes the following findings:
(1) The Constitution of the United States grants to Congress the power “To define and punish...Offenses against the Law of Nations,” as well as the power “To declare War...To raise and support Armies...[and] To provide and maintain a Navy”.
(2) The military commission is the traditional tribunal for the trial of persons engaged in hostilities for violations of the law of war.
(3) Congress has, in the past, both authorized the use of military commission by statute and recognized the existence and authority of military commissions.
(4) Military commissions have been convened both by the President and by military commanders in the field to try offenses against the law of war.
(5) It is in the national interest for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war. (Emphasis added.)
Note that while the Senate’s Findings recognize that presidents have convened military commissions, paragraph 5 recites that “[i]t is in the national interest for Congress to exercise its authority under the Constitution to enact legislation” regarding military commissions. The separation of powers war continues.
In the House version, Subchapter I does make a crucial distinction between “unlawful enemy combatants” and “lawful enemy combatants.” The former are:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
“Lawful Enemy Combatants” are:
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
Thus, Subchapter I does make a clear distinction between regular military forces, as traditionally understood, even in the Geneva Conventions, and terrorists.
This is significant because it objectifies in a Congressionally-endorsed manner that there is a category of belligerent trying to destroy us that does not fit the conventional understanding of “lawful enemy combatant,” and who can and should be treated differently.
However, it does not follow from this distinction that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them. (Subchapter I also defines “aliens” as those persons not citizens of the United States.)
Another anti-terrorist provision of Subchapter I is that although “[t]he procedures for military commissions set forth in [the new Act] are based upon the procedures for trial by general courts-martial,” the latter procedures do not “apply to trial by military commission except as specifically provided in” the MCA. In other words, “[t]he judicial construction and application of [the general courts-martial statute] are not binding on military commissions established under the” MCA. This is important because procedures under the MCA will not be burdened with procedural baggage from general courts-martial, which deal not with terrorist-related offenses, but with garden-variety criminal acts.
Again, however, it does not follow from this that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them.
The third useful anti-terrorist provision of Subchapter I is that “no alien unlawful enemy combatant subject to trial by military commission . . . may invoke the Geneva Conventions as a source of rights . . . .” This is significant for two reasons: it removes a ground for the legal left to stand on in its unceasing litigation against our war on Islamic terrorists, and it eliminates the squishy language from the Geneva Conventions as elements in our treatment of unlawful enemy combatants.
And that is the end of the good news.
There are six other Subchapters in the MCA, three of which need not concern us at the moment:
· Subchapter II—“Composition of Military Tribunals”—deals with who may convene them, who may serve on them, military judges, and trial and defense counsel.
· Subchapter V—“Sentences”—reads as follows: “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be . . . inflicted . . . . The use of irons, single or double, except for the purpose of safe custody, in prohibited . . . . (Emphasis added. Note that the 8th Amendment to the United States Constitution prohibits cruel and unusual punishments.)
· Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA, and commendably they cover virtually every conceivable offense a terrorist could commit. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
That leaves Subchapters III, IV, and VI.
Mostly, Subchapter III—“Pre-trial Procedure—is benign. For example, it explains how charges are to be specified, and that the accused is entitled to notice of them.
However, the other provision of Subchapter III—“Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements”—is the bridge to what begins to sound like the Warren Court’s solicitude for domestic criminal defendants.
Just as in our Fifth and Fourteenth Amendments, applicable to domestic criminals, the MCA provides that no accused Islamic terrorist “shall be required to testify against himself.” Statements obtained by “torture” are inadmissible. (See below for the definition.)
As to other statements, not obtained by torture, the MCD draws a dateline between statements made (1) before December 30, 2005 and (2) those made from that date forward (when the McCain “be nice” Amendment took effect).
If “the degree of coercion” is disputed (as of course it will be) concerning a pre-December 30, 2005, statement, it is admissible only if the military judge finds it: (a) “reliable and possessing sufficient probative value,” and (b) “the interests of justice [yes, that’s what the MCA says] would best be served” by admitting it.
If “the degree of coercion” is disputed (as of course it will be) concerning a post-December 30, 2005, statement, it is admissible only if the military judge finds: (a) “the totality of the circumstances renders it “reliable and possessing sufficient probative value,” (b) “the interests of justice would best be served” by admitting it, and (c) “the interrogation methods used to obtain the statement do not [in the Senate version] violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.”
As bad as many other provisions of the MCA are, this post-2005 provision is by far the worst because it can completely eliminate the use of statements by Islamic terrorists. The effect of this section is to incorporate into the MCA the rights provided to domestic criminal defendants. Thus, if a statement is obtained by interrogation that violates the two virtually standardless “Due Process Clauses” of the Fifth and Fourteenth Amendments—which have freed countless domestic criminal defendants because their treatment did not satisfy criteria such as “the evolving ethics of mankind”—that statement is inadmissible even if it is “reliable and possessing sufficient probative value” and “the interests of justice would best be served” by admitting it.
Worse still, is the Eighth Amendment. The Supreme Court ruled in Helling v. McKinney that, if proved, the following allegation could constitute cruel and unusual punishment under the Eighth Amendment:
[The prisoner] was assigned to a cell with another inmate who smoked five packs of cigarettes a day. * * * The complaint also stated that that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked . . . and that certain cigarettes burned continuously, releasing some type of chemical . . . . [The prisoner] complained of certain health problems allegedly caused by exposure to cigarette smoke.
In sum, Subchapter III gives accused Islamic terrorists—torturers, beheaders, homicide bombers—captured outside the United States in such places as Afghanistan, Iraq, Pakistan, and who knows where else—American Constitutional Bill of Rights protection not only against self incrimination, but also against violations of amorphous Due Process “rights” that know no limits even under domestic law.
That brings us to Subchapter IV—“Trial Procedure”—under which our ability to fight the “war against extremists” of which McConnell spoke doesn’t get any easier. Indeed, it gets much more difficult.
Much like Subchapter III, some of the provisions of Subchapter IV are benign.
For example, no one can unlawfully influence the action of a military commission, duties of trial and defense counsel are spelled out, rules are provided for holding sessions of the tribunal and for adjournments, the taking of oaths is specified, everything about voting by the judges is explained. Then there are provisions about keeping a record of the trial, and announcing the sentence (if any).
The remaining provisions of Subchapter III are right out of the ACLU playbook.
Accused Islamic terrorists like Khalid Sheik Mohammed have the right to discovery of witnesses and documents. They can present evidence; cross-examine witnesses; enjoy the benefit of counsel; exercise challenges against the judges peremptorily, and for cause; be immune from double jeopardy; cop a plea; subpoena witnesses anywhere the United States has jurisdiction; and even plead “severe mental disease or defect” that rendered them “unable to appreciate the nature and quality of the wrongfulness of the acts.”
As to “classified information,” under Subchapter IV the prosecutor can request the judge “to authorize, the extent practicable,” deletion of specified items from documents, providing only a portion or summary, or “the substitution of a statement of relevant facts that the classified information would prove.” The qualifying “to the extent practicable” leaves another huge loophole through which any defense lawyer and/or sympathetic judge can pour much classified information into the ready hands of the terrorists.
The disclosure of “sources, methods, or activities” is supposedly protected, but “[t]he military judge may require [the prosecutor] to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.” There is simply no way to know what this means, or how much classified information will pour through this sieve.
To gild the lily, Subchapter IV also provides—as the Supreme Court required for domestic criminal trials in the case of Brady v. Maryland—that the prosecutor must “disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused.” Presumably, as in the other criminal justice system—the domestic one—failure of the prosecution to do so, even unintentionally, could well result in a reversal of any conviction.
Which brings us to Subchapter VI, “Post-Trial Procedure and Review of Military Commissions.”
There are “lesser included offenses,” which presumably can reduce a charge of murder to mere mayhem. After a convicted terrorist is provided with a copy of the trial record, he can challenge the findings and sentence of the military commission and seek a modification. The convening authority, “in his sole discretion,” can do anything he likes about the sentence except increase it.
All guilty verdicts go to a Court of Military Commission Review. From there to the United States Court of Appeals for the District of Columbia Circuit, for appeal on questions of law, i.e., whether all the rules were followed, and consideration of, “to the extent applicable, the Constitution and the laws of the United States.” And that’s not necessarily the end of the line for Mr. Khalid Sheik Mohammed: “The Supreme Court may review . . . the final judgment of the Court of Appeals . . . .”
Naturally, if Mohammed has the right to all these appeals, he’s going to need an appellate lawyer, maybe an entire team, so: “The Secretary of Defense shall . . . establish procedures for the appointment of appellate counsel . . . for the accused . . . .”
If all these appeals fail—predictably, many years after the trial—a death sentence can be commuted by the President. A President Al Gore, John Kerry, or Howard Dean, for example.
According to a recent statement put out by Senate Minority Leader Harry Reid (D-Nev.), the MCA “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” (Emphasis added.) Unfortunately, as I’ve shown above, it does. And in case Reid forgot, Khalid Sheik Mohammed is not an “American,” he is not facing a “trial,” and he is not in a “U.S. Court.” Mohammed, the 9/11 mastermind, is an Islamic terrorist facing a military commission.
Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
For the self-destructive debacle that the MCA is, we can thank a narrow Supreme Court majority obsessed with the fiction of international human “rights,” a White House lacking the backbone to take on Court and Congress while pandering to the latter, a cabal of rogue Republican senators playing their own political games, a democrat senate minority that consistently puts their party over national security.
But they’ve all had help.
The Islamic terrorists’ domestic newspaper shill, The New York Times, on September 28, 2006, published an editorial entitled “Rushing Off a Cliff.”
The editorial lamented that the MCA gave President Bush “the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.” (Emphasis added.)
I wish!
Once again the Times—the engine driving the anti-Bush fantasies of the left in an attempt to defeat the Republicans in November and in 2008—is engaging in reckless hyperbole.
The newspaper cites seven “of the bill’s biggest flaws”: Here they are, in the Times’s own words:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
For openers, there is no reference in the MCA to “illegal enemy combatants.” The category is “unlawful enemy combatants,” a descriptive term recognized by the Supreme Court in its few decisions on the subject.
Second, to repeat what I have quoted above, here is the MCA’s definition of “unlawful enemy combatant”:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States . . . who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
This definitional section must be read in conjunction with a provision of the same Subchapter which provides that the MCA “establishes procedures governing the use of military commissions to try alien [i.e., non-citizen] unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses . . . .” (Emphasis added.)
The Times does not explain how under these definitions “legal residents of the United States, as well as foreign citizens living in their own countries,” could be subject “to summary arrest and indefinite detention with no hope of appeal.”
No hope of appeal? Only to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States.
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
This is absurd, for two reasons. First, Subchapter I provides expressly that “A military commission . . . is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” (Emphasis added.)
Second, while Subchapter I also provides that “[n]o alien unlawful enemy combatant . . . may invoke the Geneva Conventions,” those terrorists are not prisoners of war and thus have no claim to protection under the Geneva Conventions—as even the Supreme Court has recognized. Maybe there is “international precedent” to the contrary, perhaps in France or Sudan, but even if there is, that has no binding effect in the United States. I’m sure that the President will be delighted to know he can “decide on his own what abusive interrogation methods he considers permissible.” Ask McCain if that’s true. Indeed, my comments above make it only too clear that just the opposite is the case, and that an Islamic terrorist can actually litigate the degree of coercion allegedly used on him, while standing on his rights under the Fifth, Eighth, and Fourteenth Amendments to our Constitution.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Yes, there is no habeas corpus for Islamic terrorists. Appeals to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States, will have to suffice. Also, the Times begs the question, positing that those finally convicted after trial and three or four appeals (more than even O.J. Simpson would get domestically) are “wrongly imprisoned people.”
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
Talk about begging the question! Of course the appeals are from the military commissions, because that’s where the trials take place—trials that the Times and their acolytes have been demanding for five years. As to not having a trial, much to the chagrin of the Times and its legal left foot soldiers, the Supreme Court has ruled that alien enemy combatants can be held until the end of hostilities, but that if we are going to try anyone (to impose punishment, rather than mere confinement), we need a better system than the pre-MCA military commissions. One wonders what the Times would have had our military do with the countless prisoners we took during WW II—and they were not even “unlawful” enemy combatants. Neither regular enemy forces nor guerillas are released, if at all, until the end of hostilities.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
Perhaps the Times’s lawyers have not informed their client that for years before the criminal justice revolution of the sixties, even coerced evidence was admissible if it was trustworthy. The newspaper apparently doesn’t understand that coerced testimony can be reliable, as for example when a threat or arm twisting produces information leading to the apprehension of another Islamic terrorist. Sure there was coercion, but it certainly was reliable! As to the definitions, see above, and remember that the accused can challenge the coerced evidence in several different ways.
Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.
So now Dick Cheney is the culprit. Probably because he, unlike the President, is a lawyer.
In the first place, “American standards of justice” are applicable in a domestic criminal court and protect defendants like O.J. Simpson, not in a military commission trying the mastermind of the 9/11 reign of death and destruction on Americans, their property, and our democratic institutions.
Secondly, as I make clear above, there is no “secret evidence”—unfortunately. Is the Times actually saying that we should provide Islamic terrorists with information about the CIA’s “sources, methods, and activities”? As it has already done by revealing our telephone surveillance, money tracking, and secret prisons programs?
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
As to torture, not only is the MCA’s definition much too liberal, but the Fifth, Eighth, and Fourteenth Amendment “due process” protections add even to those. Indeed, the MCA’s prohibition of “cruel, inhuman, or degrading” treatment, thanks to the Bush-McCain 2005 legislation, is more than enough to cover any form of torture. As to “other forms of nonconsensual sex,” whatever that might be, an Islamic terrorist allegedly subject to such treatment can certainly argue that it was, if not “cruel,” then maybe “inhuman,” and if not that, then certainly “degrading.”
None of this bluster, misrepresentation, distortion, and special pleading from the Times is surprising, and none of it should be taken seriously.
On the other hand, what must be taken very seriously is the road we have been sent down by rogue justices of the Supreme Court, inept apparatchiks in the White House, political opportunists in the senate, and terrorist lovers in the media.
As our nation treads that road—with platoons of the Legal Left and its fellow traveling lawyers in the vanguard—we will see it littered with the road kill resulting from our lost right of self defense against not the O.J. Simpsons of the world, but the Khalid Sheik Mohammeds.
Somewhere in that Big Courtroom in the Sky, Earl Warren must be smiling.
FrontPageMagazine.com
At the end of the Supreme Court’s 2005-2006 term last June, the Hamdan decision took a slice out of presidential power by eviscerating the military commissions President Bush had established to try Islamic terrorists. Ostensibly, the Court’s reason was because the tribunals had not been authorized by Congress
In response, only recently did the Administration get around to offering a proposal to Congress to satisfy what the White House thought the Court wanted. From a negotiating perspective, the proposal was a disaster, opening with the offer to provide counsel to accused Islamic terrorists, to allow them to produce evidence, to call witnesses, and to remain silent.
Then, to make matters worse, Bush ran into a guerilla war launched in the Senate by Republicans McCain, Warner, Graham, and Collins. Their tuncated notion of what appropriate military tribunals should be did even more damage.
Much posturing and in-fighting ensued, adding yet again to the perception that America was soft and lacked the will to do what is brutally necessary to deal with Islamic terrorists whose every breath is devoted to destroying us.
That perception has now become reality.
On September 27, 2006, the House of Representatives passed the Military Commissions Act [MCA] of 2006. The next day the Senate followed suit with its version, which differed from the House’s only in minor, non-substantive ways. Procedurally, the House approved the Senate version on September 29, 2006. The President is expected to sign the bill immediately.
While Rep. Duncan Hunter, R-CA, Chairman of the House Armed Services Committee, where the bill originated, seemed to understand that “[w]e are dealing with the enemy in war, not defendants in our criminal justice system,” and went on to say that “[i]n time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops,” that, and much more, is what he and his colleagues gave us in the MCA. And it’s not just the rules of evidence that Congress and the President have given away.
About the Republican victory in the Senate, Majority Whip Mitch McConnell, R-KY, similarly acknowledged that “[w]e are not conducting a law-enforcement operation against a check-writing scam or trying to foil a bank heist. We are at war against extremists who want to kill our citizens, cripple our economy and discredit the principles we hold dear—freedom and democracy.” Unfortunately, the MCA belies McConnell’s view of just what kind of an “operation” America is conducting, and contains too many provisions that negate the fact that we are, to quote the senator, “at war against extremists.”
There will be much discussion about the MCA and its many provisions. Liberals will complain that it violates the human rights of those to be tried by military commissions. Conservatives will complain that it provides the defendants with too many procedural rights.
While much conservative criticism will be justified, the overarching calamity of the MCA is apparently still not grasped by Hunter, McConnell, and other Republicans. The MCA has institutionalized the Clintonesque view that accused terrorists, not members of an identifiable regular army, are simply a problem to be dealt with by the criminal law—e.g., the first World Trade Center bombing, Kenya and Tanzania, the U.S.S. Cole—and not a purely military issue to be handled in Department of Defense-conducted proceedings with a minimum amount of procedural niceties.
The MCA, which amends Title 10 of the United States Code to add a new Chapter 47A, consists of seven subchapters. (In this article, unless otherwise noted I will use the original House version [HR 6166] for purposes of discussion, rather than the virtually identical senate version, that was subsequently passed by the House.)
The Senate version contains “Findings,” the obvious purpose of which is an attempt to build on the Hamdan decision’s requirement of Congressional authorization, and, while at it, to establish Congressional supremacy over military commissions:
Congress makes the following findings:
(1) The Constitution of the United States grants to Congress the power “To define and punish...Offenses against the Law of Nations,” as well as the power “To declare War...To raise and support Armies...[and] To provide and maintain a Navy”.
(2) The military commission is the traditional tribunal for the trial of persons engaged in hostilities for violations of the law of war.
(3) Congress has, in the past, both authorized the use of military commission by statute and recognized the existence and authority of military commissions.
(4) Military commissions have been convened both by the President and by military commanders in the field to try offenses against the law of war.
(5) It is in the national interest for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war. (Emphasis added.)
Note that while the Senate’s Findings recognize that presidents have convened military commissions, paragraph 5 recites that “[i]t is in the national interest for Congress to exercise its authority under the Constitution to enact legislation” regarding military commissions. The separation of powers war continues.
In the House version, Subchapter I does make a crucial distinction between “unlawful enemy combatants” and “lawful enemy combatants.” The former are:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
“Lawful Enemy Combatants” are:
(A) a member of the regular forces of a State party engaged in hostilities against the United States;
(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
Thus, Subchapter I does make a clear distinction between regular military forces, as traditionally understood, even in the Geneva Conventions, and terrorists.
This is significant because it objectifies in a Congressionally-endorsed manner that there is a category of belligerent trying to destroy us that does not fit the conventional understanding of “lawful enemy combatant,” and who can and should be treated differently.
However, it does not follow from this distinction that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them. (Subchapter I also defines “aliens” as those persons not citizens of the United States.)
Another anti-terrorist provision of Subchapter I is that although “[t]he procedures for military commissions set forth in [the new Act] are based upon the procedures for trial by general courts-martial,” the latter procedures do not “apply to trial by military commission except as specifically provided in” the MCA. In other words, “[t]he judicial construction and application of [the general courts-martial statute] are not binding on military commissions established under the” MCA. This is important because procedures under the MCA will not be burdened with procedural baggage from general courts-martial, which deal not with terrorist-related offenses, but with garden-variety criminal acts.
Again, however, it does not follow from this that unlawful enemy combatants are entitled to the procedural protections that later Subchapters of the MCA provide them.
The third useful anti-terrorist provision of Subchapter I is that “no alien unlawful enemy combatant subject to trial by military commission . . . may invoke the Geneva Conventions as a source of rights . . . .” This is significant for two reasons: it removes a ground for the legal left to stand on in its unceasing litigation against our war on Islamic terrorists, and it eliminates the squishy language from the Geneva Conventions as elements in our treatment of unlawful enemy combatants.
And that is the end of the good news.
There are six other Subchapters in the MCA, three of which need not concern us at the moment:
· Subchapter II—“Composition of Military Tribunals”—deals with who may convene them, who may serve on them, military judges, and trial and defense counsel.
· Subchapter V—“Sentences”—reads as follows: “Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be . . . inflicted . . . . The use of irons, single or double, except for the purpose of safe custody, in prohibited . . . . (Emphasis added. Note that the 8th Amendment to the United States Constitution prohibits cruel and unusual punishments.)
· Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA, and commendably they cover virtually every conceivable offense a terrorist could commit. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
That leaves Subchapters III, IV, and VI.
Mostly, Subchapter III—“Pre-trial Procedure—is benign. For example, it explains how charges are to be specified, and that the accused is entitled to notice of them.
However, the other provision of Subchapter III—“Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements”—is the bridge to what begins to sound like the Warren Court’s solicitude for domestic criminal defendants.
Just as in our Fifth and Fourteenth Amendments, applicable to domestic criminals, the MCA provides that no accused Islamic terrorist “shall be required to testify against himself.” Statements obtained by “torture” are inadmissible. (See below for the definition.)
As to other statements, not obtained by torture, the MCD draws a dateline between statements made (1) before December 30, 2005 and (2) those made from that date forward (when the McCain “be nice” Amendment took effect).
If “the degree of coercion” is disputed (as of course it will be) concerning a pre-December 30, 2005, statement, it is admissible only if the military judge finds it: (a) “reliable and possessing sufficient probative value,” and (b) “the interests of justice [yes, that’s what the MCA says] would best be served” by admitting it.
If “the degree of coercion” is disputed (as of course it will be) concerning a post-December 30, 2005, statement, it is admissible only if the military judge finds: (a) “the totality of the circumstances renders it “reliable and possessing sufficient probative value,” (b) “the interests of justice would best be served” by admitting it, and (c) “the interrogation methods used to obtain the statement do not [in the Senate version] violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.”
As bad as many other provisions of the MCA are, this post-2005 provision is by far the worst because it can completely eliminate the use of statements by Islamic terrorists. The effect of this section is to incorporate into the MCA the rights provided to domestic criminal defendants. Thus, if a statement is obtained by interrogation that violates the two virtually standardless “Due Process Clauses” of the Fifth and Fourteenth Amendments—which have freed countless domestic criminal defendants because their treatment did not satisfy criteria such as “the evolving ethics of mankind”—that statement is inadmissible even if it is “reliable and possessing sufficient probative value” and “the interests of justice would best be served” by admitting it.
Worse still, is the Eighth Amendment. The Supreme Court ruled in Helling v. McKinney that, if proved, the following allegation could constitute cruel and unusual punishment under the Eighth Amendment:
[The prisoner] was assigned to a cell with another inmate who smoked five packs of cigarettes a day. * * * The complaint also stated that that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked . . . and that certain cigarettes burned continuously, releasing some type of chemical . . . . [The prisoner] complained of certain health problems allegedly caused by exposure to cigarette smoke.
In sum, Subchapter III gives accused Islamic terrorists—torturers, beheaders, homicide bombers—captured outside the United States in such places as Afghanistan, Iraq, Pakistan, and who knows where else—American Constitutional Bill of Rights protection not only against self incrimination, but also against violations of amorphous Due Process “rights” that know no limits even under domestic law.
That brings us to Subchapter IV—“Trial Procedure”—under which our ability to fight the “war against extremists” of which McConnell spoke doesn’t get any easier. Indeed, it gets much more difficult.
Much like Subchapter III, some of the provisions of Subchapter IV are benign.
For example, no one can unlawfully influence the action of a military commission, duties of trial and defense counsel are spelled out, rules are provided for holding sessions of the tribunal and for adjournments, the taking of oaths is specified, everything about voting by the judges is explained. Then there are provisions about keeping a record of the trial, and announcing the sentence (if any).
The remaining provisions of Subchapter III are right out of the ACLU playbook.
Accused Islamic terrorists like Khalid Sheik Mohammed have the right to discovery of witnesses and documents. They can present evidence; cross-examine witnesses; enjoy the benefit of counsel; exercise challenges against the judges peremptorily, and for cause; be immune from double jeopardy; cop a plea; subpoena witnesses anywhere the United States has jurisdiction; and even plead “severe mental disease or defect” that rendered them “unable to appreciate the nature and quality of the wrongfulness of the acts.”
As to “classified information,” under Subchapter IV the prosecutor can request the judge “to authorize, the extent practicable,” deletion of specified items from documents, providing only a portion or summary, or “the substitution of a statement of relevant facts that the classified information would prove.” The qualifying “to the extent practicable” leaves another huge loophole through which any defense lawyer and/or sympathetic judge can pour much classified information into the ready hands of the terrorists.
The disclosure of “sources, methods, or activities” is supposedly protected, but “[t]he military judge may require [the prosecutor] to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.” There is simply no way to know what this means, or how much classified information will pour through this sieve.
To gild the lily, Subchapter IV also provides—as the Supreme Court required for domestic criminal trials in the case of Brady v. Maryland—that the prosecutor must “disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused.” Presumably, as in the other criminal justice system—the domestic one—failure of the prosecution to do so, even unintentionally, could well result in a reversal of any conviction.
Which brings us to Subchapter VI, “Post-Trial Procedure and Review of Military Commissions.”
There are “lesser included offenses,” which presumably can reduce a charge of murder to mere mayhem. After a convicted terrorist is provided with a copy of the trial record, he can challenge the findings and sentence of the military commission and seek a modification. The convening authority, “in his sole discretion,” can do anything he likes about the sentence except increase it.
All guilty verdicts go to a Court of Military Commission Review. From there to the United States Court of Appeals for the District of Columbia Circuit, for appeal on questions of law, i.e., whether all the rules were followed, and consideration of, “to the extent applicable, the Constitution and the laws of the United States.” And that’s not necessarily the end of the line for Mr. Khalid Sheik Mohammed: “The Supreme Court may review . . . the final judgment of the Court of Appeals . . . .”
Naturally, if Mohammed has the right to all these appeals, he’s going to need an appellate lawyer, maybe an entire team, so: “The Secretary of Defense shall . . . establish procedures for the appointment of appellate counsel . . . for the accused . . . .”
If all these appeals fail—predictably, many years after the trial—a death sentence can be commuted by the President. A President Al Gore, John Kerry, or Howard Dean, for example.
According to a recent statement put out by Senate Minority Leader Harry Reid (D-Nev.), the MCA “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” (Emphasis added.) Unfortunately, as I’ve shown above, it does. And in case Reid forgot, Khalid Sheik Mohammed is not an “American,” he is not facing a “trial,” and he is not in a “U.S. Court.” Mohammed, the 9/11 mastermind, is an Islamic terrorist facing a military commission.
Subchapter VII—“Punitive Matters”—contains the core criminal law provisions of the MCA. There are sections on principals, accessories, lesser included offenses, attempts, solicitation, murder of protected persons (who are defined), attacking civilians, attacking civilian objects, attacking protected property, pillaging, denying quarter, taking hostages, employing poison or similar weapons, using protected persons as a shield, torture, cruel or inhuman treatment, using protected property as a shield, intentionally causing serious bodily injury, mutilating or maiming, murder in violation of the law of war, destruction of property in violation of the law of war, using treachery or perfidy, improperly using a flag of truce, improperly using a distinctive emblem, intentionally mistreating a dead body, rape, hijacking or hazarding a vessel or aircraft, terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, conspiracy, contempt, and perjury and obstruction of justice.
For the self-destructive debacle that the MCA is, we can thank a narrow Supreme Court majority obsessed with the fiction of international human “rights,” a White House lacking the backbone to take on Court and Congress while pandering to the latter, a cabal of rogue Republican senators playing their own political games, a democrat senate minority that consistently puts their party over national security.
But they’ve all had help.
The Islamic terrorists’ domestic newspaper shill, The New York Times, on September 28, 2006, published an editorial entitled “Rushing Off a Cliff.”
The editorial lamented that the MCA gave President Bush “the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.” (Emphasis added.)
I wish!
Once again the Times—the engine driving the anti-Bush fantasies of the left in an attempt to defeat the Republicans in November and in 2008—is engaging in reckless hyperbole.
The newspaper cites seven “of the bill’s biggest flaws”: Here they are, in the Times’s own words:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
For openers, there is no reference in the MCA to “illegal enemy combatants.” The category is “unlawful enemy combatants,” a descriptive term recognized by the Supreme Court in its few decisions on the subject.
Second, to repeat what I have quoted above, here is the MCA’s definition of “unlawful enemy combatant”:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States . . . who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
This definitional section must be read in conjunction with a provision of the same Subchapter which provides that the MCA “establishes procedures governing the use of military commissions to try alien [i.e., non-citizen] unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses . . . .” (Emphasis added.)
The Times does not explain how under these definitions “legal residents of the United States, as well as foreign citizens living in their own countries,” could be subject “to summary arrest and indefinite detention with no hope of appeal.”
No hope of appeal? Only to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States.
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
This is absurd, for two reasons. First, Subchapter I provides expressly that “A military commission . . . is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” (Emphasis added.)
Second, while Subchapter I also provides that “[n]o alien unlawful enemy combatant . . . may invoke the Geneva Conventions,” those terrorists are not prisoners of war and thus have no claim to protection under the Geneva Conventions—as even the Supreme Court has recognized. Maybe there is “international precedent” to the contrary, perhaps in France or Sudan, but even if there is, that has no binding effect in the United States. I’m sure that the President will be delighted to know he can “decide on his own what abusive interrogation methods he considers permissible.” Ask McCain if that’s true. Indeed, my comments above make it only too clear that just the opposite is the case, and that an Islamic terrorist can actually litigate the degree of coercion allegedly used on him, while standing on his rights under the Fifth, Eighth, and Fourteenth Amendments to our Constitution.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Yes, there is no habeas corpus for Islamic terrorists. Appeals to the Convening Authority, the Court of Military Commissions Review, the United States Court of Appeals for the District of Columbia Circuit, and perhaps even the Supreme Court of the United States, will have to suffice. Also, the Times begs the question, positing that those finally convicted after trial and three or four appeals (more than even O.J. Simpson would get domestically) are “wrongly imprisoned people.”
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
Talk about begging the question! Of course the appeals are from the military commissions, because that’s where the trials take place—trials that the Times and their acolytes have been demanding for five years. As to not having a trial, much to the chagrin of the Times and its legal left foot soldiers, the Supreme Court has ruled that alien enemy combatants can be held until the end of hostilities, but that if we are going to try anyone (to impose punishment, rather than mere confinement), we need a better system than the pre-MCA military commissions. One wonders what the Times would have had our military do with the countless prisoners we took during WW II—and they were not even “unlawful” enemy combatants. Neither regular enemy forces nor guerillas are released, if at all, until the end of hostilities.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
Perhaps the Times’s lawyers have not informed their client that for years before the criminal justice revolution of the sixties, even coerced evidence was admissible if it was trustworthy. The newspaper apparently doesn’t understand that coerced testimony can be reliable, as for example when a threat or arm twisting produces information leading to the apprehension of another Islamic terrorist. Sure there was coercion, but it certainly was reliable! As to the definitions, see above, and remember that the accused can challenge the coerced evidence in several different ways.
Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.
So now Dick Cheney is the culprit. Probably because he, unlike the President, is a lawyer.
In the first place, “American standards of justice” are applicable in a domestic criminal court and protect defendants like O.J. Simpson, not in a military commission trying the mastermind of the 9/11 reign of death and destruction on Americans, their property, and our democratic institutions.
Secondly, as I make clear above, there is no “secret evidence”—unfortunately. Is the Times actually saying that we should provide Islamic terrorists with information about the CIA’s “sources, methods, and activities”? As it has already done by revealing our telephone surveillance, money tracking, and secret prisons programs?
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
As to torture, not only is the MCA’s definition much too liberal, but the Fifth, Eighth, and Fourteenth Amendment “due process” protections add even to those. Indeed, the MCA’s prohibition of “cruel, inhuman, or degrading” treatment, thanks to the Bush-McCain 2005 legislation, is more than enough to cover any form of torture. As to “other forms of nonconsensual sex,” whatever that might be, an Islamic terrorist allegedly subject to such treatment can certainly argue that it was, if not “cruel,” then maybe “inhuman,” and if not that, then certainly “degrading.”
None of this bluster, misrepresentation, distortion, and special pleading from the Times is surprising, and none of it should be taken seriously.
On the other hand, what must be taken very seriously is the road we have been sent down by rogue justices of the Supreme Court, inept apparatchiks in the White House, political opportunists in the senate, and terrorist lovers in the media.
As our nation treads that road—with platoons of the Legal Left and its fellow traveling lawyers in the vanguard—we will see it littered with the road kill resulting from our lost right of self defense against not the O.J. Simpsons of the world, but the Khalid Sheik Mohammeds.
Somewhere in that Big Courtroom in the Sky, Earl Warren must be smiling.
FrontPageMagazine.com
posted by Marko at 10/02/2006 03:02:00 PM
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