As Prof. Steve Vladeck summarizes, Sec. 1037 of the FY2011 NDAA:

[T]itled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

Page 403 of the NDAA is where Sec. 1037 begins, see here.  Covered lawyers under Sec. 1037 include uniformed judge advocates and civilian counsel that represented Gitmo detainees.  The bill seems to be a resposne to the Fitzgerald investigation and facts leading up to it, see Newsweek here.  But, I agree with Prof. Vladeck that it is incredibly broad and could be read to sweep in almost every lawyer that ever practiced before the Commissions.

Here are some responses to Sec. 1037 of the FY2011 NDAA, ABA letter here and Prof. Vladeck at Balkinization here.

Not the Geneva Conventions I Know

I read with interest Captain (ret.) Keith Allred’s opinion piece in the Wall Street Journal “Military Commissions: The Right Venue For KSM”.  While I freely admit that I do not agree with most of his opinions, I find myself compelled to write this comment because of what I consider his mischaracterizations of the law upon which he bases those opinions.  I do not write simply to highlight what I believe are Allred’s errors.  Rather, because lawyers working within this field, most particularly military lawyers, have an obligation to know what the law of armed conflict does and does not provide, my hope is that this counterpoint will contribute to a fuller understanding of the Geneva Conventions.

Allred correctly observes that the law of war provides “both sticks and carrots” to encourage observance of the POW-civilian distinction.  In stating that Geneva’s mechanisms go beyond combatant immunity and targeting, and in addition provide for more favored/less favored treatment of certain types of belligerents, however, he makes claims that are unsupported by the treaties themselves. 

The first statement with which I take legal issue is where, in speaking about the 1949 Conventions, Allred states that “Central to this weighty objective [of preventing a repeat of civilian losses and suffering in World War II] was a scheme for clarifying who could and could not engage in hostilities.”  In fact, the 1949 Conventions provided no substantive clarifications regarding who qualifies as a “privileged belligerent” or “lawful combatant”, the standard that Allred seems to equate with those who can engage in hostilities.  All of the categories in Article 4, GC III of persons engaging in hostilities who qualify as POWs are drawn from Hague Convention IV, of 1907.  While GC III certainly clarified and expanded on many matters from earlier POW treaties, it neither expanded nor significantly clarified eligibility for POW status of persons engaged in belligerent acts.

Similarly, the Geneva Conventions do not contain any provision regarding who cannot engage in hostilities (nor, for that matter, does any other LOAC treaty).  While Allred is correct that the law governing international armed conflicts is based on a simple duality – POW or civilian, there is absolutely no basis in treaty law to support his claim that “civilians may not” engage in hostilities or that “civilians are prohibited from actively taking part in the hostilities.”  Quite simply, no treaty provision declares participation by a civilian to be a violation of the law, nor does any treaty provide for penal sanctions for civilians who do participate.  Far from Geneva being “a scheme for clarifying who could and could not engage in hostilities”, the key concept of civilian was not even defined until 1977, and even then only in the negative (according to AP I a civilian is, effectively, anyone who does not qualify as a POW).  Certainly, civilian participation in hostilities complicates the ability to distinguish between legitimate and illegitimate targets, so an affirmative prohibition might be a wise policy.  Nonetheless, no treaty actually addresses this difficulty by expressly, or even implicitly, prohibiting civilians from participating. 

Quite to the contrary, the reality that civilians will participate in hostilities is implicitly recognized in Article 5 of GC IV, which authorizes derogations from standard rights of communication for certain “protected persons [civilians]” whom a Party to an international armed conflict suspects “engaged in activities hostile to the security of the State.”  Additionally, of course, Common Article 3 of the Geneva Conventions affirmatively recognizes that civilians will engage in hostilities regulated by the Geneva Conventions –  CA 3 governs the conduct of parties engaged in non- international armed conflict.  By definition at least one party to a non-international armed conflict will be a non-State actor; and a non-State party to a conflict can only be composed of civilians. 

Indeed, the term “unlawful combatant” itself is inconsistent with treaty law.  While there are of course unlawful means and methods of warfare, as well as other unlawful acts that can be committed during armed conflict, there is in treaty law no such concept as an unlawful person, let alone an “unlawful combatant”.  As acknowledged by Allred, Geneva provides for only two types of person – POW or civilian, and mandates treatment based exclusively on that duality.  There is therefore no room in treaty law for a legally-significant third category such as “unlawful combatant” — the concept has no place within the bipolar scheme that is Geneva.  Finally, Article 44 of AP I uses the term “combatant” synonymously with Prisoner of War, so many modern commentators also avoid the term “unlawful combatant” because it is an oxymoron.  

Allred also makes the blanket statement that, pursuant to Geneva, “[c]ombatants may be attacked, civilians may not.”  This obviously incomplete characterization of the law may seem like a harmless generalization, but it is in fact central to two of his other incorrect claims about the Geneva Conventions.  The need to ignore the universally recognized truth that civilian participants in armed conflict may be targeted until they have laid down their arms or become hors de combat (in the language of Common Article 3), or  for such time as they are directly participating in hostilities (in the language of AP I),is related to his erroneous claims that civilian participation in hostilities is so antithetical to the Geneva scheme that it is itself a violation the law of armed conflict, and that a civilian who participates in hostilities is an “unlawful combatant”.  All three, interrelated claims are, at best, inaccurate generalizations or oversimplifications of what the treaty law actual says, or does not say.

Finally, I cannot even guess the legal basis for Allred’s claim that “the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants”.  The only extensive discussion of substantive and procedural law regarding prosecutions, to the extent that it can even be considered extensive, is with respect to POWs.  Coverage of those issues with respect to civilians is actually rather minimal, and ultimately the minimum standard for any prosecution comes down to Article 75 of AP I and similar articles in AP II (recognized as customary law despite their placement in treaties not ratified by the US).  Consistent with the discussion above regarding the term’s lack of legal significance, the trial of “unlawful combatants” simply is not addressed in a meaningful way in any law of armed conflict treaty.  There certainly is no affirmative recognition of the appropriateness to trying them in some sort of second-class system.

I will leave it to the courts to decide whether military commissions do, in fact, comply with the law of armed conflict.  And while there are many other aspects of Allred’s piece with which I also take issue, or find internally inconsistent, arguably they are not based on claims regarding the Geneva Conventions.  Reasonable minds may differ over what may be the best or most appropriate course of action between several options, and I respect Allred’s right to hold and promote his opinions.  It is only his claims regarding the treaty law relevant to those issues with which I have difficulty.

*Philip Sundel was an active duty Navy JAG, followed by a period as a legal advisor with the International Committee of the Red Cross, and is now a civilian in government practice.  At various points in his career has investigated, prosecuted, defended, and monitored the treatment of persons charged with violations of the laws of war.  This commentary is written in his private capacity.

Here is an interesting editorial from former Hamdan trial judge CAPT (ret.) Keith Allred. He advocates placing the 9-11 conspirators in the military commission system. While I agree with much of Judge Allred’s analysis. I think he omits a critical issue, that the 9-11 attacks, the primary charges against Khalied Sheik Mohammad and the other conspirators, were not acts committed on a battlefield. Thus, as I have posted about before, e.g. here, those crimes are not proper charges for a military commission. Rather, like the prior WTC bombers, they should be tried as terrorists and, if and when that process convicts and sentences them, locked up with their brethren in the secure facility in CO. As for the lingering issue of a potential acquittal, which I would say is just as likely if not more so in a military commission, considering that KSM has admitted his crimes in open court, see e.g. here, I don’t see how those that view that as a problem would be concerned.

Back in early February, we reported scuttlebutt that VADM MacDonald would be named the military commission system’s new convening authority.  And, as announced here, today it happened.

I found on Politico that CAAFlog contributor Cully Stimson and other former President George W. Bush administration lawyers have come out against Keep America Safe’s demonizing of DOJ lawyers that served as pro bono counsel for Gitmo detainees. 

A group that includes leading conservative lawyers and policy experts , former Independent Counsel Kenneth Starr and several senior officials of the last Bush administration [No Man: including Cully Stimson] is denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.

I can’t say for sure, but I would guess that means 100% CAAFlog contributor disagreement with Keep America Safe’s statements on pro bono counsel. But, I’ll wait to hear from our other contributors.

Update:  Here is a link to the letter, or the text of it, I can’t quite tell.  Here is a good quote form the letter:

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Regardless of how you feel about The New York Times, even a stopped clock gets the right time twice a day. The Times recently published a story about Andrew McCarthy, the former SDNY AUSA who was on the prosecution team that worked the terrorism cases (pre- and post-9/11), and is now a vocal critic of the DOJ-centric approach to the fundamental question of how to bring terrorists to justice. The story is here:  http://www.nytimes.com/2010/02/20/nyregion/20prosecutor.html?pagewanted=1&hp

There’s strong feelings on both sides of the issue. McCarthy demonstrates both that there is a wide rift between the two extremes (where, on one hand, terrorism is a purely political issue, and on the other, purely a military one), and that in the middle there is a fundamental question of criminal procedure: no matter how we conceptually characterize the issue of terrorism, the practical application of any system of laws requires a robust infrastructure.

As a SAUSA I saw (and was awed and humbled by) the complexity of our Federal Courts and the way in which the policy and procedural rules for prosecutions are layered to an incredible degree; a prosecution before a Court-Martial is a comparatively simple matter. The Guantanamo commissions, I think, were designed to apply most of the best of both of these worlds to the trial of terrorists in a court of law. If the tenor of the debate over the handling of Umar Abdulmutallab (the Christmas Day bomber) is any indication of the future justiciability of terror issues, the commissions may also be a legal posthistoric edge of chaos to which we must inevitably return (see J. B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407 (1996)) (also see Francis Fukuyama, The End of History and the Last Man, Free Press (1992)).

Also, McCarthy is right-on about needing the Marines.

We’ve received an unconfirmed report that Vice Admiral Bruce MacDonald, the former Judge Advocate General of the Navy, will fill the military commission system’s convening authority role that CAAF Senior Judge Susan Crawford recently vacated.  Can anyone confirm or deny?

Here’s a link to audio of Tuesday’s oral argument before the Court of Military Commission Review in United States v. Hamdan.  (We previously posted a link to audio of Tuesday’s al Bahlul argument here.)

Today’s oral argument in Blazier, No. 09-0441/AF, concerning application of Melendez-Diaz to military drug testing lab reports, was exceptionally fascinating.  Audio is available here.  Audio in Huntzinger, No. 09-0589/AR, concerning whether servicemembers have any reasonable expectation of privacy at a Forward Operating Base, is available here.

Audio of today’s NMCCA oral argument in Saxman is available here. 

Finally, the Court of Military Commission Review heard oral argument today in two cases arising from military commission convictions:  United States v. Hamdan and United States v. al Bahlul.  Audio of the al Bahlul oral argument is available here.

As everyone surely knows, President Obama signed the FY2010 National Defense Authorization Act on Wednesday.  The Act contained provisions “upgrading,” my word, the Military Commissions Act of 2006, and thus does not utilize the UCMJ–it also does not utilize the military appellate courts as many of us had argued would be prudent, see link to Gene Fidell’s argument here.  The Act does not put suspects on par with courts-martial in all respects, but it is an improvement. 

The MCA amendments can be found here at Sections 1801-07.  When GPO prints Public Law No. 111-84 we will give you the new link.  Here is my least favorite provision.  

‘‘§ 948d. Jurisdiction of military commissions

‘‘A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, whether such offense was committed before, on, or after September 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized under this chapter. A military commission is a competent tribunal to make a finding sufficient for jurisdiction.

I just don’t understand how, with all the rhetoric of the campaign, the provision permitting trial by military commission for offenses committed “before or on” Septemeber 11, 2001 remains.  I won’t belabor the point.  See my rant here.

Also, an interesing Q&A from NPR, here, with Charlie Swift’s take on the amnedments.  Here is an excerpt:

On the legitimacy of military commissions:

A military judge recently remarked to me that as long as the process and rules of evidence [for military commissions] are inferior to federal courts, and cases are sent to commissions because of that perceived deficiency in evidence, the commissions will never be seen as legitimate.

If, instead of evidence or a perception of danger posed by the detainee, one bases the decision [on] what is the legally appropriate forum [to try detainees], the Law of War actually addresses the question.

Article 64 of the Fourth Geneva Convention dealing with occupations requires all persons detained by the occupying power to be tried by a non-political military tribunal sitting in the occupied territory.

So for the detainee that allegedly took part [in or] supported acts of sabotage and terrorism in Afghanistan, those persons should be tried exclusively in a military tribunal.

The problem with the commissions at the moment is that Congress politicized them by passing the 2006 Military Commissions Act after the Hamdan decision, rather than following the Supreme Court’s holding that the commission’s rules must comply with the longstanding Uniform Code of Military Justice, which is decidedly not a political court.

Gene Fidell writes here on Balkinization about the conference committee version of the DOD Authorization Act rejecting a move to establish CAAF as the direct review authority for military commission convictions.  Gene notes ways in which unlawful enemy alien combatants convicted by military commission will continue to enjoy greater rights than U.S. servicemembers receive, such as having a right to appeal regardless of the severity of the sentence and having a guaranteed path to filing a cert petition.

We had previously discussed a provision in the Senate version of the National Defnse Authorization Act for FY 2010 that would have given CAAF direct appeal jurisdiction over military commission cases.  That provision, however, isn’t in the conference committee’s version of the bill, which is available here.  The first level of appellate review remains with the Court of Military Commission Review, which is comprised of a mix of CCA and civilian judges.  The second level of appellate review remains with the D.C. Circuit, with discretionary review by the Supremes.

As we reported last week, the military defense counsel representing accused terrorist Ramzi bin al Shibh recently filed a petition for a writ of mandamus broadly attacking the constitutionality of military commissions in general and rulings by the military judge and convening authority in their client’s case in particular. In response, the government alleged that the circuit court lacks jurisdiction to hear interlocutory appeals in MCA cases, and defended the actions complained of by the defense.

The government also informed the appellate court that it planned to seek a sixty-day continuance of the competency hearing that had been scheduled to begin this week.  The military judge, Army Colonel Stephen Henley, has granted the continuance.  A copy of his order appears here:  [PDF].

The government’s reply to the writ petition filed by two Navy JAGs in the bin al Shibh case (discussed here) is now online.

The government argues broadly that, inter alia, the court lacks jurisdiction to entertain interlocutory matters in MCA cases.  Not surprisingly, the government also disputes some of the factual assertions made by the defense. The competency issue at first glance appears to be one of those disputed; but on closer examination, the government does not appear to challenge the defense’s assertion that bin al Shibh may not be competent to “conduct or cooperate intelligently in his own defense.” The government has agreed to continue bin al Shibh’s competency hearing for sixty days.

The government brief can be found here: [PDF].

SCOTUSblog brings us news of action on a writ petition filed by CDR Suzanne Lachelier and LCDR Richard Federico on behalf of their client, Ramzi bin al Shibh.  The government has been ordered to file a response; the timetable set up by the appeals court suggests that the petition will be heard very soon.

In fairly harsh language, the petition asserts that cases brought under the Military Commissions Act of 2006 “were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.” 

The petition focuses in large part on the government’s handling of mental health issues that purportedly call into question bin al Shibh’s fitness to stand trial. According to the petition, the accused was diagnosed by a sanity board comprised of military psychiatrists as suffering from a delusional disorder that “has the potential to impair his ability to conduct or cooperate intelligently in his defense.” The Convening Authority, the petition states, repeatedly denied defense requests for an expert; when the military judge finally ordered a defense psychologist be appointed, it was with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at the competency hearing. 

Petitioner’s counsel allege that it is “inconceivable that American citizens accused of capital or other serious crimes” would be treated in the same manner.  For this reason among others, they argue, the MCA violates the Due Process Clause’s principle of equal protection, both as written and as applied in bin al Shibh’s case.  They ask that all proceedings before the military commissions be halted.  The full petition can be found online here: [PDF].

In a one-page order issued Friday, the Court of Appeals for the D.C Circuit ordered the government to respond to the petition by noon Tuesday, September 15, 2009. Bin al Shibh’s reply brief is due forty-eight hours later.