January can’t come fast enough for the legislative wish list. Forget inaugural affairs, I’m reserving a victory ballroom for the reversal of the Military Commissions Act of 2006. Dance jigs or fake it. Welcome, celebration. I hope.
The pressure continues. The usually conservative ABA just placed another seasoned log on the fire. Detention issues bound to be explored when the Military Commissions Act is challenged were highlighted in yesterday’s panel discussion broadcast on C-SPAN at the ABA’s National Security Law Conference, co-sponsored by UVA’s Center for National Security Law.
Half on the panel were good guys Neal Katyal (Georgetown Law professor and lead counsel in Hamdan), and Deborah Pearlstein (Human Rights First, director of the U.S. Law and Security program). The other half were Jack Goldsmith (Harvard Law professor), and Brad Berenson (Associate Counsel for President Bush 2001-2003), who conceded the Military Commissions Act will be attacked by the best constitutional minds in the country.
It was a casual sharpening of spears for oral argument. Among the issues:
The Sham of Combatant Status Review Tribunals
Prof. Katyal suggests the CSRT’s be replaced by a scheme of national security courts, with a long-term set of players as judges and as advocates — the equivalent of detention prosecutors and detention defense counsel, given security clearances.
He mentioned Wednesday’s Washington Post “GITMO Justice is a Joke”, critical of the system of shallow and pre-ordained tribunals — which lack federal court oversight. Then he told the story of Hamdan’s CSRT, which I’ll summarize:
Co-counsel Lt. CMDR Swift was suddenly barred from Guantanamo just as he was about to see their client. A couple of days later, he received a call from the “Personal Representative” — a military advocate assigned to the detainee. The Personal Rep said the CSRT was coming up, and no attorney was allowed — notwithstanding the ABA rule on attorney-client contact.
Although they had some “amazing exculpatory evidence,” in a videotape, they were told that only the detainee could present it, and furthermore, that he would be cross-examined on it and his testimony could be used against him in a criminal trial down the road.
Of course, the lawyers wrote Hamdan, counseling him not to talk about exculpatory evidence. Despite assurance their correspondence was protected by attorney-client privilege, Hamdan’s Personal Representative read the letter to the tribunal.
No one on the panel had the temerity to suggest in an ABA conference that these tribunals satisfy any real sense of justice. Three guesses what the Supreme Court will find, the first two don’t count.
Courts Martial Suffice
The good guys were on a roll. They stressed that we now can — and should — try war crimes with the UCMJ. Courts martial do a good job of handling classified information. Participants can all have security clearances. They use existing rules of discovery. The number of federal terrorist-related criminal laws is vast, covering, e.g., training in any foreign country for the purpose of engaging in any potential terrorist act.
We have no practical need for a new system started from scratch that would be litigated until we’re plucking harps on clouds. For more on Prof. Katyal’s views of the benefits of the military justice system, read his July 2006 testimony before the Senate Armed Services Committee.
Ex Post Facto
The Military Commissions Act runs up against the structural limits on what Congress can do, the Constitution’s Ex Post Facto clause, Katyal said. “You can’t re-jigger the rules now and create a new scheme.”
If Mr. Berenson had any careful analysis, he hid it. “Would the Nuremberg trials, themselves, be construed as ex post facto?” he asked. The Nuremberg trials, of course, were authorized by the Constitution of the International Court drafted by the Soviets, English, French, and Americans. I imagine Mr. Berenson declined to compare detainees’ trials to Nuremberg because there have been none. Besides, Nuremberg defendants were entitled to a fair trial with counsel, translators, and basic procedural protections — much, much more than detainees find in their b.s. combat status review tribunals.
A Separate System of Justice for Aliens is Unconstitutional
Giving non-citizens a second-rate system is deeply offensive to the Equal Protection Clause. The author of the Fourteenth Amendment wanted to overrule the statement in Dred Scott that only citizens have constitutional protections, Prof. Katyal explained. Hence,
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
.
Why should a soldier who might bomb the world trade center be treated differently from an alien who does the same thing? he asked. They both committed the same act — and if anything, the soldier was also a traitor.
Mr. Berenson dropped back ten. He switched focus from the act to the actor’s civil status, as if that would make us all safer. It isn’t deeply offensive [to the Constitution] to shoot people in Iraq, he said, or to limit immigration.
To talk about the rights of a foreign enemy requires recognition that if the nation is to succeed in protecting itself, it needs to treat them differently than its own citizens and soldiers.
You can’t hope to whistle down the wind with that.
Does Locale Matter for Constitutional Protections?
According to Mr. Berenson, enemy aliens held on foreign soil lack habeas corpus rights “of a constitutional magnitude” in the first place. Therefore, the Military Commissions Act did not suspend them.
Not so. Where the United States has control for all practical purposes, detainees have fundamental constitutional rights.
Guantanamo Bay is not a battlefield, it’s a permanent American outpost (the lease with Cuba, for $4,000 a year, cannot be changed except by mutual consent). In Prof. Katyal’s experience, it feels like the United States in every possible way except for iguanas running around on the ground.
Ms. Pearlstein added that even on foreign soil, detainees are entitled to at least some rights. Why?
1. The government has only the power granted by law.
2. Otherwise, when a country’s representative steps outside the border, the basic idea of limited power is out the window — an absurd result.
3. The Supreme Court has said if the connection to the United States is close enough, the Constitution affords at least basic protections.
Does this mean the United States is barred from torturing its detainees anywhere? It must.
Someone should tell the Pentagon that the good guys are coming to town. Some clown there is proposing to spend $125 Million to build courtrooms for trials at Guantanamo Bay. That’s like Vern Buchanan making a full-blown move to Washington, disregarding the likelihood Christine Jennings will replace him soon or sooner.
If “military justice is to justice as military music is to music” the Military Commissions Act of 2006 sounds like blackboard screeching to imitate Sousa, excruciating even to the most tone-deaf among us. The work to can that piece of garbage will be hard, but the legal combatants are impressive. They’ll prevail. I hope, I hope, I hope.