ILJ Brown Bag Discussion on the Military Commissions Act

BY ELIZABETH LEWIS

On Monday, October 6, 2007, the International Law Journal kicked off its 2007-08 Brown Bag Lunch Series with a lively discussion co-sponsored by the National Security and the Law Society with Professors Goldsmith, Heymann, and Goodman regarding the implications of the Military Commissions Act. The bill, which was a response to the Supreme Court’s holding in Hamdan v. Rumsfeld that the President may not convene military commissions outside the scope of the United States Code of Military Justice absent specific congressional authorization, has been a matter of heated debate in the national media in recent weeks, with many in the U.S. and international community questioning the propriety of various provisions, as well as the legality of the commissions at all.

Professor Goldsmith kicked off the discussion by challenging ILJ’s characterization of Congress’ final bill as a compromise at all. “Compromise?” he queried as the discussion was announced. After the announcer acquiesced by rephrasing the legislation as the “President’s bill,” Goldsmith clarified that he just wanted to make sure we were talking about the same thing.

Professor Goldsmith framed the debate by pointing out that any evaluation of the current iteration of military justice is highly dependant on what is used as a baseline. He reminded the group that in light of President Roosevelt’s 1942 Proclamation appointing military commissions during World War II, the current bill marks a serious retrenchment of presidential power, and that government lawyers were not crazy to use that executive action as a precedent for presidential authorization of military commissions today.

As far as a baseline for interpreting the Geneva Convention, he observed that twenty years ago the military thought coercion was perfectly acceptable, that the methods were likely quite harsh, and that this bill puts even further limitations on the President than the McCain amendment. Furthermore, it is crucial that the most powerful country in the world has gone on record interpreting Common Article 3.

Professor Goodman continued Goldsmith’s theme, but referred instead to an “international baseline.” He contrasted Goldsmith’s point regarding Roosevelt’s proclamation by noting that we have not had military commissions since 1942, and that in the decades following World War II the U.S. criminal justice system experienced a dramatic ramping up of procedural protections for defendants. With regard to torture, he noted that the Pentagon has voluntarily announced that its field manual will respect Common Article 3.

Goodman, however, showed concern with reactions from human rights organizations calling the legislation the “torture bill,” when it clearly prohibits torture and when its object is to combat a serious human rights violation – terrorism. With regard to habeas, Goodman explained that from an international perspective, which tends to favor access to courts, the bill marks an erosion of internationally recognized rights, and that in the context of the death penalty, limitation of procedural rights is particularly disturbing, and forbidden by human rights law.

Professor Heymann began by questioning the importance of the compromise when the whole reason for departure from the UCMJ (which provides for regular procedure in courts-martial) was to protect classified information, which now must be given to the defense, at least in summary format, if it is to be used. The prosecution must give all the evidence to the defense at trial, but if it is secret can substitute a summary, which has to be certified by a judge and does not have to be kept secret.

However, as Heymann noted, this does not seem like much protection for the defendant in some cases where the summary consists of a claim from Northern Alliance members, who have been paid $5000 to turn someone over as a Taliban member. He warned that it is always good practice to treat other soldiers how we would have our own treated, and worried that the bill treats resident aliens like visitors, and broadens the definition of alien and enemy combatant.

All of the professors were concerned with the expansion of the definition of enemy combatant, as “materially support[ing] hostilities” has the potential to be interpreted quite broadly. Professor Goldsmith urged us to consider, perhaps the most important point of the discussion, that those who are determined through summary process by the government to be enemy combatants can be “killed or detained until the end of the conflict” – they never actually have to be tried in a military commission. This leaves observers to question whether the process offered defendants in the bill means anything of substance or whether it is just a tool to create the illusion of process.

Following the professors’ input, students were quick to join the conversation to air similar concerns about the implications of the bill. The International Law Journal will be facilitating the discussion of equally relevant and timely issues the first week of each month.

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