Military Commissions Act 2006 vs. 2009

1. Military Commissions Act2006 vs. 2009 Kailyn McGillicuddy Hilary Panfili

2. MCA 2006 History The Military Commissions Act of 2006 establishes procedures governing the use of Military Commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by Military Commission. The Military Commissions Act of 2006 authorizes the President to establish Military Commissions.

3. MCA 2006 History Cont’d MCA 2006 was signed into law by George W. Bush on 17 October 2006. MCA 2006 was drafted in the wake of Hamden v. Rumsfeld. Military Commissions have been used to prosecute enemy combatants who violate the laws of war. The last time the United States used the Military Commission process was during World War II. After Al Odah v. United States, Section 7 was found unconstitutional by the Supreme Court on 12 June 2008.

4. MCA 2009 History MCA 2009 was signed into law by Barack H. Obama on 28 October 2009. Defense Officials have 90 days to update rules and procedures for the commissions.

5. General Provisions MCA 2009 retains the basic structure of MCA 2006 A military judge presides over the trial Panel can range from 5 to 12 (for potential death sentence cases) The president must approve executions Excludes statements obtained through torture Permits hearsay and coerced statements, within limits Defendants have right to be present and to see classified evidence but may be excluded for being disruptive

6. General Provisions Cont’d • Prosecutors are required to disclose exculpatory evidence against government witnesses • Appeals are permitted • Jurisdiction over 32 crimes, mostly war crimes • Also covers conspiracy and providing material support for terrorism • Defendants must have good legal assistance

7. Leading Cases (MCA 2006) • First used on November 13, 2006 • Ali Saleh Kahlah al-Marri • 3 Cases • David Matthew Hicks • Pled guilty • Omar Khadr • Dismissed on jurisdictional grounds • Salim Ahmed Hamden • Dismissed on jurisdictional grounds

8. Hamdan v. Rumsfeld Bush Administration had taken the position that the Geneva Conventions did not apply to members of Al Qaeda captured in the global “war on terror.” The Court- “some minimal protection, falling short of full protection under the Conventions, to [any] individuals ... who are involved in a conflict in the territory of a signatory.” Military Commission Act (MCA) of 2006

9. MCA 2009: Major Changes Unlawful Enemy Combatant vs. Unprivileged Enemy Belligerent Ex Post Facto Concerns Purposeful and Material Support “War on Terror” Aliens and Children Admission of Hearsay Evidence/Use of Classified Evidence Defense Resources

10. Military Commissions Claim to Provide… A fair trial in accordance with the applicable laws of war All the necessary judicial guarantees which are recognized as indispensible by civilized peoples for purposes of common Article 3 of the Geneva Conventions Appropriate protection of national security interests Protection and safety for all personnel participating in the process, including the accused

11. Problems with MCA 2006 Unconstitutional suspension of habeas corpus Unconstitutional ex post facto law Protections from criminal and civil prosecutions for previous instances of alleged torture Violation of human rights

12. The Obama Administration’s Position • “[T]he decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable - a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.” • “For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of Military Commissions at Guantanamo succeeded in convicting a grand total of three suspected terrorists.”-President Obama National Archives Museum, Washington, D.C. May 21, 2009

13. Military Commission Act 2009 • The Military Commissions Act of 2009 was approved by a vote of 281-146 as part of the National Defense Authorization Act • Provisions provide for limitations on the use of hearsay or coerced evidence and greater defense access to witnesses and evidence. • The Military Commissions Act is meant to ensure that military commission trials will be fair and that convictions obtained will be secure.

14. MCA 2009 Forbids the use of detainee statements obtained through torture, coercion, or cruel, inhuman and degrading treatment Guarantees detainees military lawyers at government expense or give defendants the option of hiring civilian lawyers or relying on ones willing to work at no cost Detainees facing a possible death sentence would be entitled to two attorneys at government expense Detainees could attend all sessions, cross-examine government witnesses and present their own They could not be forced to testify against their will Hearsay testimony could be offered by either side but would have to be deemed reliable and relevant to be admitted

15. Issue • Has the Military Commissions Act of 2009 improved the creditability of US military commissions? • Is a legitimate due process established in the MCA of 2009?

16. Pros • First, the legislation comes closer to standard international humanitarian law lexicon in addressing itself to “alien unprivileged enemy belligerents” rather than “alien unlawful combatants.” Thus, the basic concept statutory provision has been changed from: § 948b. Military commissions generally • (a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission. to: (a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission. • An “alien unprivileged enemy belligerent” is defined at Sec. 948a(7) as: • an individual (other than a privileged belligerent) who— • (A) has engaged in hostilities against the United States or its coalition partners; • (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or • (C) is a member of al Qaeda.

17. Geneva Conventions • The status of the Geneva Conventions as a source of law has been elevated considerably. Originally, the legislation purported to prevent the treaties' invocation in any setting and for any purpose. • The new language accepts that the Conventions may be applicable offensively in habeas proceedings or defensively in penal proceedings by providing only that they may not give rise to an independent cause of action.

18. Common Article 3 Congress has deleted reference to the status of military commissions as “regularly constituted courts” affording the necessary “judicial guarantees” for the purpose of common Article 3. The original legislation — passed in the wake of Hamdan v. Rumsfeld (2006), which classified the armed conflict with Al Qaeda and the deposed Taliban as a Common-Article-3 non-international armed conflict, at a minimum — boldly asserted that the military commissions satisfied common Article 3, as if the courts would simply accept such a claim. Status of commissions under common Article 3. A military commission established under this chapter 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.

19. The legislation includes at §950p(c) a more explicit war nexus, thus limiting the ability of the government to use military commissions to prosecute crimes that occurred prior to the initiation of an armed conflict involving the U.S. The starting date for any conflict involving the U.S. has never been definitively established, but any such armed conflict likely commenced on September 11th at the earliest and October 7, 2001 (when the U.S. invaded Afghanistan) at the latest. (Although Justice Thomas in Hamdan and others have argued that any armed conflict was initiated earlier, either when Al Qaeda "declared war" on the U.S. (Justice Thomas's theory) or attacked our embassies in Kenya & Tanzania). The new war nexus states: • (c) Common Circumstances—An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict. Incidentally, the formulation of the war nexus is identical to that in the ICC's elements of crimes.

20. Spying • The crime of spying has been slightly redefined to more clearly reference the law of war (added text in bold): • Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct. Congress would have done better to cut more deeply into the list of purported war crimes to cull out all the novel offenses, including • * inchoate conspiracy, • * material support for terrorism • * and murder of a privileged combatant • rather the leaving the task of determining their comprehensibility to the commissions (and the courts if they're allowed to get their hands on these cases). Had the crime of conspiracy actually been deleted as was obviously contemplated, many of the existing military commission cases would have had to be re-worked in light of the heavy reliance on that charge.

21. Cons • The legislation still asserts that it does not create any new crimes. The 2006 MCA stated that all of its enumerated crimes pre-existed its enactment and thus could be invoked in a criminal prosecution arising out of pre-2006 events, such as the attacks of 9/11 or even the U.S.S. Cole and Khobar Towers attacks. • The drafted version of the legislation that did not get passed had more appropriately hedged this a bit when it stated: § 950p. Definitions; construction of certain offenses; common circumstances • (d) Offenses Encompassed Under Law of War—To the extent that the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010. • This language, which acknowledges that just because Congress says something was already penalized by the law of war does not make it so, unfortunately did not make it into the final legislation. New Section 950p(d) has the same effect as the language in the 2006 MCA.

22. Conspiracy • Conspiracy (the charge of choice before military commissions) is still listed as a substantive crime. The new MCA still allows for the prosecution of an inchoate crime of conspiracy, notwithstanding that a plurality of the Supreme Court in Hamdan determined that no such crime exists under the law of war. Had the draft language been adopted, conspiracies would have been prosecutable only as a form of responsibility when some substantive war crime that was the object of the conspiracy was committed.

23. Purposeful and Material Support This new law uses the same language regarding support as the previous law did. The test, in both laws, is whether a person has "purposefully and materially supported hostilities against the United States.” This is the law's second ground for eligibility for trial before a military commission; The first ground is that the person actually engaged in hostilities against the U.S. or its allies.

24. The Overbroad "War on Terror" (or War on Al Qaeda, the Taliban and Associated Groups) • Like the previous legislation, it seems to take an extremely broad view of the "hostilities" with Al Qaeda, suggesting that the armed conflict may have begun even before the September 11, 2001 attacks. In its section 948d, covering the commissions' jurisdiction, the law specifically states that it covers offenses committed "before, on or after September 11, 2001.” *It's worth noting, that some detainees have been charged in military commissions with offenses dating back to 1996.

25. Too Much, Too Little • The law is also overbroad in that it fails to exempt from its jurisdiction the class of children – or, more specifically, the class of those people who allegedly committed the relevant offenses when they were under the age of 18. • The new law is too limited in the sense that it only covers aliens.

26. Policy Proposal The US join the ICC to prosecute war crimes, if DOJ does not wish to prosecute in federal court. While Military Commissions have had a long history of useful service we should join the rest of the world in a legitimate sustainable way of prosecuting war crimes.

27. Implications • This means giving up jurisdiction but also giving decisions more creditability. • This would create a consistent standard for prosecution of war crimes. • Joining the ICC would most likely slow down prosecution of war crimes.