Beyond Guantánamo, Obstacles and Options

By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006 .  Part I appears today.  Part II will be posted on Thursday, August 14.]   

Introduction

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court’s Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system’s chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court’s Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court’s Boumediene decision, the trial of Osama bin Laden’s alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.

In Boumediene, the Court’s decision focused in part on the right of aliens designated as enemy combatants and held in Guantánamo Bay, Cuba to challenge the basis for their detention through the writ of habeas corpus. The Supreme Court conducted an extensive survey of the history of the writ and the Suspension Clause stating, “given the unique status of Guantánamo Bay and the particular dangers of terrorism in the modern age, . . . courts simply may not have confronted cases with close parallels to this one.”[5] Despite admitting that the historic record was limited, the Court nevertheless found that the writ of habeas corpus may only be suspended in cases of invasion or rebellion. The Suspension Clause, according to the Court, protects “a time-tested device, the writ” and that protection is intended “to maintain the delicate balance of governance” between the executive branch and the judiciary.[6] This protection was intended by the Founders to prevent “cyclical abuses” by the executive branch.[7] Accordingly, the Court concluded that Section 7 of the MCA, which stripped courts of the ability to review the propriety of detention other than by procedures established in the Detainee Treatment Act of 2005,[8] while not intended to be a formal suspension of the writ of habeas corpus, failed to provide detainees with an adequate substitute for habeas corpus. As a result, detainees held in Guantánamo Bay were entitled to request a federal district court conduct a habeas review of their designation as an enemy combatant and their related detention.

Because Boumediene’s focus was primarily on detention, the procedures for trial by military commission were largely unaltered by the opinion itself. Nonetheless, Hamdan filed a habeas petition challenging the constitutionality of his continued detention and planned trial by military commission.[9] That petition was denied, clearing the way for the first military commission trial to begin on July 21, 2008.[10] Two weeks later, on August 6, 2008 a jury composed of six military officers returned a split verdict, convicting Hamdan of providing material support to a terrorist organization and acquitting him on conspiracy charges.[11] While his challenges were noted by the court, they were left to be resolved on appeal.[12] As those appellate courts sort out the infirmities in military commissions, necessary reforms will become increasingly likely.[13]

The military commission’s decision in Hamdan makes clear that Boumediene did not derail military commission trials. Hamdan’s challenges that were left unaddressed by the District Court will resurface in subsequent litigation. That litigation will likely call into question the adequacy of military commission proceedings and may mandate additional legislation. Thus, these developments, coupled with earlier challenges to military tribunals, call into question the long-term viability of military commissions[14] and have led some to propose the formation of a national security court.[15]

This Essay focuses on the structure of the military commission system, to date left largely unaltered by Boumediene, but which Congressional reformers will need to modify in order to ensure fair trials. Accordingly, I first identify structural flaws in the current military commission system which continue to undermine its legitimacy. Second, I identify obstacles reformers will face in transitioning to proposed national security courts. In Part I, I identify three specific structural reforms necessary to improve military commissions. In Part II, I focus on obstacles created by the current commissions system, which will affect the ability of Congressional reformers to abolish military commissions or transition to national security courts.

I.  Problems Undermining Current Military Commissions

If Congressional reformers intend to maintain military commissions, structural problems, which plague their implementation and affect their legitimacy must be resolved. Two major issues stem from conflicting statutory provisions, which politicize trial procedures and a third issue stems from a pattern of legislative acquiescence in matters of national security which has allowed for unsupervised delegation of rulemaking authority to the Department of Defense (DoD).

A.  Undue Political Influence

1.Conflicting Statutory Provisions—Conflicting statutory provisions in MCA largely account for the most recent controversies surrounding commissions. The first provision explicitly allows a political appointee to serve in the powerful role of Convening Authority.[16] The second provision explicitly provides trial counsel with enhanced protection from undue influence.[17] Unsurprisingly, allowing a political appointee to occupy a powerful quasi-judicial position while at the same time mandating protection from undue influence places these two statutory provisions in conflict.

The example of Colonel Morris Davis shows how these provisions affect the structural independence of the Office of Military Commissions (OMC). Colonel Davis, who was widely regarded as one of the commission’s best advocates, resigned from his position as Chief Prosecutor for the OMC.[18] What punctuated this drama was Colonel Davis’s testimony on behalf of Guantánamo detainee Salim Hamdan who argued that the military commissions were tainted by unlawful command influence.[19] Colonel Davis’ testimony on behalf of Hamdan, a person who he once described sympathy for as “nauseating” highlights the seriousness of this structural conflict.[20]

Reformers must recognize the structural nature of this interdepartmental dispute to understand how it affects the long-term legitimacy of the commissions. This structural conflict can be traced to conflicting statutory language and inadequate supervision of policy implementation. Stated more directly, Congressional drafters accepted legislation proposed by the White House in September 2006,[21] and while Congress added to the bill an important protection against undue influence,[22] it failed to consider how that provision would interact with other provisions within the bill. Moreover, its intended protection has been largely undermined by a broad delegation of authority to the executive branch. This delegation was troublesome given the exemption of military commission rulemaking from standard administrative procedures that could have prevented many implementation problems.[23] As a result the DoD created a structure and promulgated rules for the military commissions, which allowed for political manipulation of nearly all aspects of the trials.[24]

2.MCA Section 948h and the Unresolved Issue of Political Influence—The challenge lodged by Hamdan and the testimony of Colonel Davis focused on unlawful command influence.[25] While Military Commission Judge Keith Allred found that the Convening Authority of Hamdan’s military commission, Judge Susan Crawford, never had actual conversations with her superiors regarding the disposition of trials,[26] the discussion below makes clear that his findings left the underlying structural issue caused by MCA Section 948h uncorrected.

Section 948h of the MCA declares: ‘‘Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United   States designated by the Secretary for that purpose.”[27] This seemingly innocuous provision allows the Secretary of Defense to select a civilian political appointee to serve in the important role of Convening Authority, a substantial departure from courts-martial practice.[28] This raises an obvious problem: a political appointee lacks the presumption of unbiased and apolitical decisionmaking that accompanies the role of a military commander.[29] The Convening Authority is a unique official with no civilian equivalent.[30] In the case of the commissions, she also has no military equivalent; her position exists solely for the purpose of trying one class of alleged offenders. The Convening Authority’s responsibilities include reviewing the sufficiency of charges and whether they should be dismissed, selecting those cases and associated charges that should be referred to trial by military commission, selecting members of the panel (the jury), and reviewing findings of guilt and sentences.[31] These significant powers raise concerns even in courts-martial, where there is a well documented fear that the commander entrusted with the authority of convening military courts will exercise these powers over participants and the proceedings in a manner which will undermine a fair trial.[32] Despite these concerns, the Convening Authority’s powers are accepted in courts-martial as part of a military leader’s command responsibility.[33] Its justification is premised upon the need to ensure morale and discipline of service members in a system of justice which can be deployed near the battlefield[34] —a justification which is lacking in military commissions.

3. MCA Section 948h and the Hamdan Court’s Concerns Regarding Structural Insulation—In Section 948h, Congress created a Convening Authority with all the power found in military commanders but without the attendant command responsibility justification—a serious structural flaw. Quite simply, the Military Commission Convening Authority is not responsible for detainee military discipline, soldierly bearing, or morale. This fact was clearly noted by Justice Stevens in Hamdan, who stated that “Hamdan is not a member of our Nation’s Armed Forces, so concerns about military discipline do not apply.”[35] This signal was largely ignored by Congress, who, rather than recognizing the inapplicability of Convening Authority powers for military commissions, adopted the White House’s proposed structure. Doing so situated a political appointee at the apex of a military system with the substantial discretionary powers found in courts-martial but no practical justification for those powers.

Practically, Section 948h is valid as a matter of domestic law. Justice Kennedy made this fact clear in his Hamdan concurrence when he stated that it is a responsibility of Congress to prescribe “the level of independence and procedural rigor” of military courts.[36] But 948h also implicates the broader protections of the trial process, and in this respect is governed by Common Article 3, which is concerned with “matters of structure, organization, and mechanisms to promote the tribunal’s insulation from command influence.”[37] Discerning what Common Article 3 requires regarding structure and insulation from command influence is a difficult task. However, in his concurrence, Justice Kennedy made clear that a major failure of the PMO military commissions was that they were not structurally independent.[38]

Key to understanding 948h’s failing is recognizing that structural insulation (that is to say a system designed to protect against political influence irrespective of individual actors—not the motivation of any specific individuals) was central to the Court’s decision. Thus, Judge Allred’s opinion, by looking to individual actions rather than structure,[39] missed the key point. The Supreme Court made clear in Hamdan that they were not imputing ill motives to any actors within the military commission process.[40] In fact, they expressed certainty that officers in the PMO military commissions “would strive to act impartially and ensure that Hamdan receive[s] all protections to which he is entitled.”[41] Nonetheless, Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, reasoned that “the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly.”[42] Structural independence from the influence of executive actors is the central concern.[43] Section 948h, by departing from this guidance, created a structure which allowed for instances of perceived and actual undue influence and coercion.[44] Moreover, this provision is in tension with MCA Section 949b.

4.Maintaining Military Commissions Requires Removing Political Influence—If Congress intends to retain military commissions, it must remedy the structure that allows for political influence. Revising 948h to mandate that the Convening Authority be a military officer with existing courts-martial responsibilities would be a good start. This move would add a layer of insulation from political pressure. Appropriate officers might be the Commander of the Military District of Washington[45] or the Commander of SOUTHCOM, a unified command whose jurisdiction includes Guantánamo Bay.[46] Each of these proposals will ensure that the Convening Authority for Military Commissions, rather than being an individual solely selected to bring cases against detainees, will instead occupy this position as a collateral, not primary, responsibility.

5. MCA Section 949b—Trial Counsel Freedom from Undue Influence—MCA Section 949b prohibits attempts to coerce, or by any unauthorized means influence, “the exercise of professional judgment by trial counsel or defense counsel.”[47] Judge Allred relied on courts-martial practice as persuasive authority for interpreting the scope of 949b.[48] While applying the definition of command influence found in courts-martial, he also recognized that Congress sought to enhance the protections afforded to trial counsel.[49] The protections in MCA Section 949b exceed those found in Article 37 of the UCMJ by protecting against “attempts to coerce” or exercise “unauthorized influence” over trial counsel.[50]

6. Coercion Remains Despite Judge Allred’s Opinion—Judge Allred’s reasoning was consistent with the legislative history of the MCA, which reflects a belief by Congress that trial counsel in military commissions are especially vulnerable to attempts at coercion. During the drafting of the MCA, Colonel Davis requested the enhanced protections found in 949b.[51] He argued for protection against the potential for undue influence over the prosecutor’s legal judgment.[52]   His concern was that he and other trial counsel should be free from influence, coercion, or, in his words, “reprisal if someone above me believes waterboarding is an acceptable way to extract evidence.”[53] Notably, the final version guarantees freedom from influence over trial counsel’s “professional judgment,” dropping the “legal” modifier and creating even greater protection than the narrower “professional legal judgment” urged by Colonel Davis.[54]

Judge Allred’s opinion directed that the Legal Advisor to the Convening Authority be removed from Hamdan’s case, citing “substantial doubts” about his independence from the prosecutorial function.[55] But Judge Allred failed to correct the structure which allowed for undue influence. While he recognized that undue influence might recur, and ordered additional measures to protect against “any adverse consequence, professional embarrassment, unfavorable performance rating, or other disadvantage”[56] for those who participated in the Hamdan hearing or the Tate Commission investigation, the structure that allowed for undue influence remained. As a result, Colonel Davis was later notified that because of his resignation and testimony on behalf of Hamdan he did “not serve honorably” and was denied a medal for his service as prosecutor.[57] Such an act violates the language of 949b and Judge Allred’s order. More significantly, this action sends a message to other trial counsel that, regardless of whether they are directly subject to political control, they can nevertheless expect reprisals should they fail to follow the goals of their political superiors.

Military justice precedents set forth a clear standard for testing whether officials improperly influenced subordinates. The test turns on “whether a reasonable member of the public, if aware of all the facts, would have a loss of confidence in the military justice system and believe it to be unfair.”[58] In light of the public dispute and the retaliation against Colonel Davis, this test seems satisfied.

7. Implications for Future Cases—This coercive political influence has serious implications and cannot be resolved by merely removing outspoken individuals from the chain of command. For example, Colonel Davis tendered his resignation after William J. Haynes, the chief legal counsel at the DoD, was placed in his chain of command.[59] Almost simultaneously, Susan Crawford, Convening Authority of the Military Commissions, and her legal adviser, Brigadier General Hartmann, began to pressure Colonel Davis about which cases he would prosecute.[60] Both Ms. Crawford and Mr. Haynes are political appointees, and Brigadier General Hartmann worked for the Convening Authority and reported directly to civilian deputies of Mr. Haynes.[61] While Mr. Haynes resigned amid criticism from Colonel Davis, the organizational structure that allowed for such influence remained.

This structure allows executive branch political influence over the Office of the Chief Prosecutor, thus violating the spirit of Hamdan—the need for structural freedom from undue influence.[62] Allowing political officials to prepare fitness reports and make decisions regarding service medals has the same potential for influence that allowing them to direct trial decisions does because both compel officers to act in accordance with the wishes of their political superiors instead of the interests of justice. So long as trial counsel fear career impacting reprisals, they will not be free to make independent decisions regarding their trial strategy, the sufficiency of evidence against individual detainees, and the impropriety of using evidence derived from coercion or even torture. Further, such a structure allows political appointees to escape the consequences of potentially unlawful action by pressuring military officers to act in their stead, forcing those officers to choose between resignation, reprisal, or violations of the law. No system premised upon ethical conduct, should tolerate such a result. While DoD officials may have reasonably relied upon Section 948h for structuring the OMC and creating an evaluation and merit awards structure, they are bound to respect the enhanced protections in Section 949b. As Judge Allred found, it is extremely unlikely that the OMC can be structured like courts-martial without running afoul of 949b protections.[63]

8. Removing the Potential for Undue Influence—The discussion above highlights the need to restructure the OMC to remove the potential for undue influence. While Judge Allred’s opinion attempted to achieve this goal, the subsequent reprisals against Colonel Davis are likely to have a chilling effect on all trial counsel. This will raise serious questions about where the authority of the Convening Authority ends and where the authority of trial counsel, specifically the Chief Prosecutor, begins.

At trial these problems will be exacerbated by decisions regarding evidence. A prosecutor considering whether to offer evidence derived from coercion may fear of reprisal if they do not introduce it. Thus, despite Judge Allred’s opinion, important questions remain, such as: may political appointees decide, directly or indirectly, what evidence should be offered at trial? If a JAG refuses to offer evidence derived from waterboarding, can officials direct the Chief Prosecutor to reassign counsel until he finds a JAG willing to offer such evidence? May those JAGs who refuse to offer such evidence be punished through withholding of service medals? The practice of the DoD to date suggests that there is nothing to prevent the Convening Authority or other officials from engaging in this conduct.

9.Congress Must Bolster the Independence of the Trial Counsel—Congress should provide statutory clarity regarding the role of the Chief Prosecutor and other trial counsel. Specifically, Congress should mandate that trial counsel not be evaluated by, nor have service medals or other career implicating decisions made by, officials with an interest in the outcome of trials. Furthermore, Congress should address whether decisions regarding charges, evidence to be used, the trial counsel assigned to specific cases, and specific trial tactics are decisions in the exclusive domain of the Chief Prosecutor or decisions that may be overridden by individuals outside the Office of the Chief Prosecutor. Further, Congress should consider the practice of international war crimes tribunals, all of which prominently feature protections mandating the independence of the prosecutor.[64] Such protections are helpful guidance for Congressional reformers.

B.  Unsupervised Delegation and Lack of Oversight

The issues discussed above raise serious questions regarding the ability of the executive branch to implement reform. Oversight and inquiries offer one method for resolving this dispute.[65] However, the structural problems were largely attributable to the Congress’s unsupervised delegation of authority which allowed the DoD to create an appointee driven structure, and even to create positions not mentioned in the MCA. For example, the position of the Legal Advisor was created not by statute, but by regulations created by the DoD. This led the DoD to the circular conclusion that its action was authorized because the regulations they promulgated authorized such action.[66] This argument conflates the authority to implement regulations with the requirement that those regulations be consistent with the intent of the MCA.[67]

Debating the propriety of the nondelegation doctrine is beyond the scope of this Essay; however, discussing congressional reliance upon broad delegations is a worthy point of discussion for military commission reformers. Professor Neal Katyal, for example, has identified a clear trend toward legislative acquiescence in matters of national security. He proposes a bureaucratic system of internal checks, in part premised upon public administration principles.[68] To reform military commissions, however, Congress need not go so far.

The authority to make rules regarding military trials originates with the legislative branch, but Congress frequently delegates its authority. Normally, Congressional delegations are subjected to the Administrative Procedures Act (APA) which provides a mechanism for executive implementation of legislative mandates by ensuring due consideration of the views of informed interest groups. However, military commissions and courts-martial are exempted from the APA.[69] Nonetheless, the DoD has recognized that public involvement in the rulemaking process for courts-martial allows for more robust procedures, greater protection of rights, and an organizational structure less subject to legal challenge.[70] Congress should mandate that the DoD follow procedures for military commissions at least as protective as those for promulgating rules in courts-martial.

However, Congress can go further. After the PMO military commissions were established, Representative Joseph M. Hoeffel proposed H.R. 248 which provided extensive procedures for review of military commission rules, but did not refer to conventional rule-making.[71] Another proposal which Congress may want to revisit is subjecting the procedures to the Rules Enabling Act, under which “rules only come to Congress after they have been vetted in the quite open process of the Judicial Conference of the United   States committee system and review by the Justices of the Supreme Court.”[72]

Ideally, Congress should exercise its Constitutional authority over rules governing the military and write all of the rules governing commissions or subject the entire rulemaking process to public comment. In the absence of either policy choice, Congress should exercise greater oversight regarding the implementing regulations and rules by which the DoD has structured the OMC. Congress should pay particular attention to the roles, responsibilities, and supervisory authority of the Convening Authority, the Legal Advisor to the Convening Authority, and the Office of the General Counsel.

————      

*.  Visiting Assistant Professor of Law, Pennsylvania State University Dickinson School of Law. The author previously served as an academic consultant to the former Chief Prosecutor, Department of Defense Office of Military Commissions.

1.  Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10, 18, 28, 42 U.S.C.) (link).

2.  Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (link).

3.  Boumediene v. Bush, No. 06-1195 (U.S. June 12, 2008) (link).

4.  Carol J. Williams, Mixed Verdict at Terror Tribunal, L.A. Times, Aug. 7, 2008, at A1, available at http://www.latimes.com/news/printedition/front/la-na-hamdan7-2008aug07,0,4784285.story (link).

5.  Boumediene, slip op. at 22.

6. Id., slip op. at 15 (internal quotation marks omitted).

7.  Id.

8.  Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2680, 2739 (codified as amended at 42 U.S.C. § 2000dd, 10 U.S.C. § 801 & 28 U.S.C. § 2241 (2006)) (link).

9.  Memorandum of Law in Support of Petitioner’s Motion for Preliminary Injunction, Hamdan v. Gates, No. 04-CV-1519-JR (D.D.C. July 3, 2008), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/07/hamdan-legal-memo-7-3-08.pdf (link).

10.  See William Glaberson and Eric Lichtblau, Guantanamo Detainee’s Trial Opens, Ending a Seven-Year Legal Tangle, N.Y. Times, July 22, 2008, at A12, available at http://www.nytimes.com/2008/07/22/washington/22detain.html?scp=1&sq=Glaberson+and+Eric+Lichtblau%2C+july+22%2C+2008&st=nyt (link); see also Posting of Lyle Denniston to SCOTUSblog, http://www.scotusblog.com/wp/judge-refuses-to-delay-war-crimes-trial/ (July 17, 2008, 15:55 EST) (explaining the District Court’s conclusion that “all of the challenges that are raised against military commission trials can be addressed once a trial is over”) (link).

11.  See William Glaberson, Panel Convicts Bin Laden Driver in Split Verdict, N.Y. Times, Aug. 7, 2008, at A1, available at http://www.nytimes.com/2008/08/07/washington/07gitmo.html?ref=todayspaper (link).

12.  See id.

13.  See Posting of David Glazier to National Security Advisors, http://natseclaw.typepad.com/natseclaw/2008/08/the-hamdan-verd.html (Aug. 6, 2008, 14:53 EST) (arguing that “the process [of trial by military commission] still has a number of legal flaws sufficient to ensure that convictions will not ultimately stand up to the test of time”) (link).

14.  See David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil Over the Guantánamo Military Commissions, 12 Lewis & Clark L. Rev. 131, 185 (2008) (concluding that “the . . . problems are so significant that they undermine the viability of continued commission employment.”) (link).

15.  See, e.g., Harvey Rishikof, Progressive Pol’y Inst., Pol’y Report: A Federal Terrorism Court (2007), available at http://www.ppionline.org/documents/TerrorismCourt111407.pdf (link); Stuart Taylor Jr., The Case for a National Security Court, Nat’l J., Feb. 24, 2007, available at http://www.theatlantic.com/doc/200702u/nj_taylor_2007-02-27 (last visited June 2, 2008) (link).

16.  Military Commissions Act of 2006, 10 U.S.C. § 948h (2006) (“Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.”) (link).

17.  Military Commissions Act of 2006, 10 U.S.C. § 949b (discussing unlawful influence on military commissions) (link).

18.  See William Glaberson, Ex-Guantánamo Prosecutor to Testify for Detainee, N.Y. Times, Feb. 28, 2008, at A18, available at http://www.nytimes.com/2008/02/28/us/28gitmo.html?_r=1&oref=slogin (link).

19.  See id.

20.  See id.

21.  The President announced on September 6, 2006 that he was submitting draft legislation to Congress to create military commissions to try terror suspects and enemy combatants. See Press Release, White House, Fact Sheet: The Administration’s Legislation to Create Military Commissions (Sept. 6, 2006), available at http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html (link). The legislation was adopted as S. 3861, 109th Cong. (2006) (link), S. 3886, 109th Cong. (2006) (link), and H.R. 6054, 109th Cong. (2006) (link). Each proposal had the exact same language as the U.C.M.J. regarding unlawful influence upon trial counsel. See Uniform Code of Military Justice, 10 U.S.C. § 837(a) (2006) (“No person may attempt to coerce or, by any unauthorized means, influence the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”) (link); H.R. 6054, 109th Cong., at 20 (as reported by H. Comm. on the judiciary, Sept. 25, 2006) (including the same language). Senator Warner submitted an alternative proposal that added: “No person may attempt to coerce or, by any unauthorized means, influence—the exercise of professional judgment by trial counsel or defense counsel.” S. 3901, 109th Cong., at 24 (2006) (link). After negotiations on this topic and interrogation standards, a compromise proposal was reached which would become the Military Commissions Act of 2006. See S. 3930, 109th Cong. (2006) (enacted) (link).

For a more detailed account of the legislative history of MCA § 949(b), see Gregory S. McNeal. An Abbreviated Legislative History and Timeline Regarding the Development of Section 949(b) of the Military Commissions Act of 2006 (Aug. 8, 2008) (unpublished manuscript), available at http://works.bepress.com/gregorymcneal/17 (link).

22.  Military Commissions Act of 2006, 10 U.S.C. § 949b (2006).

23.  See Letter from Barry M. Kamins, President, The Association of the Bar of the City of New York to Senators Patrick Leahy, Arlen Specter, Carl Levin and John McCain and Representatives John Conyers, Lamar S. Smith, Ike Skelton and Duncan Hunter (Mar. 12, 2008) [hereinafter Letter from Barry M. Kamins], available at http://www.harpers.org/media/image/blogs/misc/guantanamoletterremc311.pdf (discussing the urgent need for Congressional oversight hearings given the potential for undue political influence and organizational changes which impact the independence of the military commissions) (link); see also Eugene R. Fidell, Military Commissions and Administrative Law, 6 Green Bag 379, 382 (2003), available at http://www.nimj.org/documents/GreenBag.pdf (stating that transparency in the form of notice and comment rulemaking for military commissions can contribute to public confidence in government decisionmaking and improved decisions) (link).

24.  See Letter from Barry M. Kamins, supra note 23, at 3 (“[T]he supervisory structure underlying the military commissions . . . establishes a blueprint for conflict and political influence on the prosecution and conduct of the military commissions. . . . “[T]his restructuring places the General Counsel [a political appointee] at the apex of the military commissions system with the power to influence and direct it from every perspective.”).

25.  Defense Motion to Dismiss the Charges and Specifications for Unlawful Influence, United States v. Hamdan, D-026 (Military Comm’n, Mar. 29, 2008), available at http://www.nimj.com/documents/UCI%20Motion%20with%20Attachments.pdf (link).

26.  Ruling on Motion to Dismiss Unlawful Influence at 7, United States v. Hamdan, D-026 (Military Comm’n, May 9, 2008), available at http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling.pdf (link).

27.  Military Commissions Act of 2006, 10 U.S.C. § 948h (2006) (emphasis added).

28.  Cf. Uniform Code of Military Justice, 10 U.S.C. § 822 (2006) (link).

29.  Convening Authority under UCMJ are commanders and military officers. Id. As such, they are protected from removal from their position, and any such removal would raise significant questions especially in light of their other nonjudicial responsibilities. See 10 U.S.C. § 822 (giving an officer the right to challenge his or her dismissal in a trial by court-martial).

30.  See Lindsy Nicole Alleman, Who Is in Charge, and Who Should Be? The Disciplinary Role of the Commander in Military Justice Systems, 16 Duke J. Comp. & Int’l L. 169, 170 (2006) (link).

31.  Dep’t of Def., The Manual for Military Commissions, pt. 2., § 2–3, (2007), available at http://www.defenselink.mil/news/Apr2007/Reg_for_Trial_by_mcm.pdf (outlining the responsibilities and functions of the Convening Authority) (link).

32.  See, Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice 6–7, (2001), available at http://www.nimj.org/documents/Cox_Comm_Report.pdf (link).

33.  See Alleman, supra note 30, at 170–71.

34.  Id.at 188–89.

35.  Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2771 (2006).

36.  Id. at 2804 (Kennedy, J., concurring).

37.  Id. (discussing the application of Common Article 3 in conformity with U.S. Law).<

38.  Id. (“[A]n acceptable degree of independence from the Executive is necessary to render a commission ‘regularly constituted’ by the standards of our Nation’s system of justice.”).

39.  See Ruling on Motion to Dismiss (Unlawful Influence) at 3–5, United States v. Hamdan, D-026 (Military Comm’n, May 9, 2008), (discussing Legal Advisor General Hartmann’s active role in the prosecution of the case), available at http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling.pdf (link).

40.  126 S. Ct. at 2771.

41.  Id.

42.  Id. at 2798 n.67. While Justice Kennedy did not join this part of the opinion, he did recognize the importance of ensuring that individual adjudicators would act fairly and impartially. Analyzing the powers of the Convening Authority in courts-martial, Justice Kennedy stated that “by structure and tradition, the court-martial process is insulated from those who have a interest in the outcome of the proceedings. . . . As compared to the role of the convening authority in a court-martial, the greater powers of the Appointing Authority here . . . raise concerns that the commission’s decisionmaking may not be neutral.” Id. at 2806–07 (Kennedy, J., concurring).

43.  See id. at 2804 (Kennedy, J., concurring); see also id. at 2807 (“[P]rovisions for review of legal issues after trial cannot correct for structural defects . . . that can cast doubt on the factfinding process and the presiding judge’s exercise of discretion during trial.”).

44.  Cf. George B. Davis, Military Law of the United States 581, 623–24 (3d rev. ed. 1915).

45.  The Prosecution and Defense are headquartered in D.C.

46.  See Uniform Code of Military Justice, 10 U.S.C. § 822 (a)(3) (2006) (specifying that the general courts-martial Convening Authority may be “the commanding officer of a unified or specified combatant command”); see also, William H. Walsh and Thomas A. Dukes Jr., The Joint Commander as Convening Authority: Analysis of a Test Case, 46 A.F. L. Rev. 195, 198–99 (1999) (explaining how the Goldwater-Nichols act enhanced the ability for commanders to create joint court-martial convening authority).

47.  Military Commissions Act of 2006, 10 U.S.C.A § 949b (2006).

48.  Ruling on Motion to Dismiss (Unlawful Influence) at 9, United States v. Hamdan, D-026 (Military Comm’n, May 9, 2008), available at http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling.pdf (link).

49.  Id.

50.  Compare Military Commissions Act of 2006, § 949b, with Uniform Code of Military Justice, 10 U.S.C. § 837(a) (2006).

51.  Telephone interview with Colonel Morris Davis, former Chief Prosecutor, Department of Defense Office of Military Commissions (March 8, 2008); see E-mail from Colonel Morris Davis to the staff of Senator Lindsay Graham (Sept. 7, 2007) (on file with author).

52.  See Interview with Colonel Davis, supra note 51; Col. Davis E-mail, supra note 51.

53.  E-mail from Colonel Morris Davis to the staff of Senator Lindsay Graham, supra note 51.

54.  Id.

55.  Ruling on Motion to Dismiss (Unlawful Influence), supra note 48.

56.  Id.

57.  Josh White, Colonel Says Speaking Out Cost a Medal, Wash. Post, May 29, 2008, at A09, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/05/28/AR2008052802966.html?hpid=moreheadlines (link).

58.  United States v. Allen, 31 M.J. 572, 590 (N.M.C.M.R. 1990) (citing United States v. Rosser, 6 M.J. 267 (C.M.A. 1979); United States v. Cruz, 20 M.J. 873 (A.C.M.R. 1985)).

59.  See Josh White, Ex-Prosecutor Alleges Pentagon Plays Politics, Wash. Post, Oct. 20, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/10/20/AR2007102000179_pf.html (link).

60.  Morris D. Davis, Op-Ed., AWOL Military Justice, L.A. Times, Dec. 10, 2007, available at http://www.latimes.com/news/opinion/la-oe-davis10dec10,0,2446661.story?coll=la-opinion-rightrail (link); see also Memorandum for Legal Advisor to the Convening Authority for Military Comm’n (Oct. 3, 2007), available at http://www.harpers.org/media/image/blogs/misc/mforlgladvoffconvauthreapptofhartmannt100307.pdf (directing Brigadier General Hartmann to supervise the Chief Prosecutor and establishing that Brigadier General Hartmann reports to the Deputy General Counsel (Legal Advisor)) (link).

61.  See Memorandum for Legal Advisor to the Convening Authority for Military Comm’n, supra note 60; Letter from Barry M. Kamins, supra note 23.

62.  See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2771 (2006).

63.  Ruling on Motion to Dismiss (Unlawful Influence), supra note 48, at 10.

64.  Article 15 of the Statute of the Special Court for Sierra Leone, signed by the U.N. and the government of Sierra Leone, states that “[t]he Prosecutor shall act independently as a separate organ of the Special Court. He or she shall not seek or receive instructions from any Government or from any other source.” Statute of the Special Court for Sierra Leone, U.N.-Sierra Leone, art. 15, Jan. 16, 2002, available at http://www.sc-sl.org/Documents/scsl-statute.html (link).

The Khmer Rouge tribunal features similar language, stating: “The Co-Prosecutors shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.” Law on the Establishment of Extraordinary Chambers, art. 19, NS/RKM/1004/006, Oct. 27, 2004, available at http://www.cambodia.gov.kh/krt/pdfs/KR%20Law%20as%20amended%2027%20Oct%202004%20Eng.pdf (link).

65.  See Letter from Barry M. Kamins, supra note 23.

66.  See Memorandum from Brig. Gen. Clyde J. Tate, II to DOD General Counsel, Sept. 17, 2007, available at http://www.defenselink.mil/news/Sep2007/Role%20of%20Legal%20Advisor%20to%20OMC.pdf (link).

67.  Cf. United States v. Swift, 53 M.J. 439, 451 (C.A.A.F. 2000) (declining to interpret a rule for courts-martial in a manner which would place it in conflict with statutory provisions of the U.C.M.J.); United States v. Lopez, 35 MJ 35, 39 (CMA 1992) (discussing the military justice system’s “hierarchical sources of rights,” under which federal statutes prevail over provisions of the Manual for Courts-Martial”).

68.  Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2318 (2006) (link).

69.  See 5 U.S.C. § 551(1)(f) (2008) (link).

70.  See Fidell supra note 23 (discussing how the Department of Defense subjects revisions to the Manual for Courts-Martial to public comment through a predictable procedure and how a similar procedure could improve military commissions).

71.  Id. at 387.

72.  Id.

————

Copyright 2008 Northwestern University      

Cite as: 103 Nw. U. L. Rev. Colloquy 29 (2008).

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2008/28

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Comments

[bildekor]

Quite nicely written actually, i like it. :)

[Schippen HRF]

Well, McNeal certainly has covered the problems that political control in "war crimes" trials presents, something not unique to the nightmare in Guantanamo. Good reforms, but unlikely to be implemented by a Congress complicit in war crimes, and really just lipstick on the bull of a broken system. Nonetheless, he's to be commended for at least trying to propose specific necessary adjustments as it seems the U.S. may be stuck with these kangaroo courts for years to come.

I will withhold the rest of my judgment until I see how he addresses the so-called national security courts. It seems to me that such courts are just a way to hold a secret trial, further depriving persons of their rights. Based on his discussion in the introduction, it appears that he will avoid the normative question of national security courts, which is perhaps wise given the flaws secret courts will contain.

[Dreadnaught]

The author mentions the problem with a political appointee as the CA, but the problems complained of by COL Davis did not involve a political appointee. Thus, a change to the regulations would not seem to remedy the problem.

[Gregory S. McNeal]

Dreadnaught,

The problem is a structural one, caused by *both* the convening authority as a political appointee, and the regulations which allow for the problems identified during Col. Davis' tenure as Chief Prosecutor.

First, as I detail in the essay, the legislation which allows for a politically appointed convening authority vests that individual with all of the discretionary powers found in a military convening authority (with the attendant potential for abuse) without a command justification.

Second, the problems I identify regarding the legal adviser to the convening authority are a consequence of the regulations promulgated by the Department of Defense. Those regulations created the position of the legal adviser, a position not found anywhere in the MCA. Those regulations were promulgated without public comment and seem to violate the spirit of the Hamdan decision's interpration of Common Article 3.

Taken together, *both* the legislation and the DoD regulations implementing the legislation have created a structure which allows for undue political influence. True, a change to the regulations won't remedy the problem of the politically appointed convening authority, but I don't make that argument.

-Gregory S. McNeal