The Detainee Bill: A Fair Compromise

BY AARON NIELSON

It is, after all, an election year, so a bit of huffing and puffing about the recent Military Commissions Act ought to be excused … as long as no one takes it too seriously. Not that the issues involved are unimportant – they are extremely important – but the effects of this bill are both sensible and limited. The Act has not unconstitutionally suspended habeas, overruled the Supreme Court, or authorized torture. Nor have the Geneva Conventions been repudiated and replaced with a system of shadowy show trials. There are still many things to worry about in this world (like some of the friends of the folks that we have locked up), but this law is not one of them.

First, habeas has not been unconstitutionally suspended. It is true that the uncertainty about the retroactivity of 2005’s Detainee Treatment Act has been resolved and the detainees’ ability to resort to federal courts has been limited, though there is still judicial review of commission judgments in the D.C. Circuit and potentially the Supreme Court, but that is not a constitutional violation. In Rasul, the Court did not say that the non-citizen detainees have a constitutional habeas right; rather, the federal habeas statute was interpreted to include those held at Guantanamo Bay.

This is not to say that it is necessarily good policy that the detainees cannot appear in federal court to argue the facts of their detention, and if the bill did not allow alternate means to show innocence this policy concern would surely carry a lot more weight, but as simply a constitutional matter nothing amiss has occurred. We are just returning to the pre-Rasul status quo.

Second, this is not a power play by the political branches against the judiciary. Hamdan is not being overruled. In his Hamdan concurrence, Justice Breyer, joined by Justices Kennedy, Souter, and Ginsburg – all hard-line conservatives, right? – wrote: “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” President Bush and Congress, including twelve Democratic senators (such as solidly blue Frank Lautenberg, Tom Carper, and Debbie Stabenow) have accepted that invitation. This is bi-partisan inter-branch cooperation. Isn’t that what we want?

Third, the Geneva Conventions remain, and their application to the War on Terror is now more legitimate. Unlike the situation in June when Hamdan was decided, all three branches of the federal government now acknowledge their applicability. That was by no means an inevitable result of Hamdan. The portion of the Hamdan decision concerning whether Common Article Three applies to al Qaeda was not especially convincing (ask yourself: if presidents generally receive deference in treaty interpretation, why did the court not defer to the president’s conclusion that Common Article Three, which requires an “armed conflict not of an international character,” does not apply to al Qaeda which obviously fights internationally?). There could easily have been an ugly confrontation between the courts and the political branches about whether the United States would really give treaty rights to a non-reciprocating terrorist organization like al Qaeda, which could have threatened our commitment to the Geneva Conventions. That unpleasant scenario was averted.

Fourth, the use of torture is not being legitimized. Senator John McCain, someone who knows a bit more than any of us about torture, has said that “there is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved.”

Maybe the bill did not go as far as some would have liked (though it does prohibit inflicting serious pain, torture, biological experimentation, murder, mutilation, sexual assault, etc.), but if you opposed the open-endedness of previous interrogation rules, this bill is an improvement. Moreover, this bill has not granted an amnesty to war criminals. By expressly referencing the specific list of prohibited conduct just mentioned, it has given a non-amorphous definition for the purposes of the War Crimes Act as to what constitutes as a war crime. You can potentially be put to death for violating the War Crimes Act: shouldn’t a United States solider who is charged with committing a war crime be entitled to a more definite legal standard than the 1996 War Crimes Act’s extremely open-ended “grave breach of the Geneva Conventions” standard?

Fifth, we have not created a regime of show trials at Guantanamo. Though Miranda warnings and prohibitions on hearsay evidence do not apply, that does not mean that the process is unfair. These new procedures guarantee, among other rights, a presumption of innocence, a right to counsel (including civilian counsel), a right against self-incrimination, a right to exclude evidence obtained through torture, and the right “to examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing.” Those rights are nothing to scoff at.

War is an ugly business. No one is pleased that there have to be folks at Guantanamo (though we all should be happier that Mr. Hamdan is locked away in Cuba instead of running weapons for Osama bin Laden in Afghanistan, or Los Angeles for that matter). We all hope that an innocent person is not detained and subjected to interrogation, but we also need to give the military the tools it needs to keep dangerous men from killing Americans. This compromise strikes the right balance.

Aaron Nielson is a 3L.

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