Thursday, September 28, 2006

Making Sense of the Military Tribunal Law

Today the Senate passed a law giving the President power to try suspected terrorists in military tribunals, and stripping those prisoners of habeus corpus rights in American courts. It also gave some definition to the question of interrogation tactics.

From my reading in various places, it appears that this law is either (a) the end of liberal democracy in America, and the beginning of an executive/military dictatorship; or (b) the only way to keep terrorists from destroying America. There aren't many people, either amateur bloggers or professional writers, who seem to have moderate or tempered views about this bill.

My views are relatively unformed. I have concerns about the bill, but not at the level that others seem to have. For the most part, I'm uncertain, and looking for more concrete information.

My starting point was the text of the bill itself, as it passed in the Senate. It's rather long and repetitive, though, so I didn't get through it in detail yet.

I then read a news article summarizing the bill and its surrounding political situation from Yahoo News. It was a nice overview, but I found one part of the article to be, though not literally false, rather deceptive. The article states:

Those subject to commission trials would be any person "who has engaged in
hostilities or who has purposefully and materially supported hostilities against
the United States or its co-belligerents." Proponents say this definition would
not apply to U.S. citizens.
I was a bit curious about the beginning of the quoted sentence from the bill, as it seems to be significant. Does it really say "any person"? I did a text search through the bill, and found the phrase in question. Here is the full quote:
Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States...
It seems to me that an "alien unlawful enemy combatant" is quite a different thing than "any person". Why did the Yahoo News article leave out those four words, and replace them with the vague statement that proponents of the bill say it only applies to non-Americans? I don't know. It seems a very strange, probably political, editorial decision.

On a broader note, though, I'm curious... do you believe this bill is important? Disastrous? Somewhere in-between? Do you think the bill's definition of an "alien unlawful enemy combatant" could possibly apply to Americans? Do you think the bill's handling of interrogation techniques is positive or negative, and why?

There's a great deal to discuss here, and I'm having a hard time finding useful (not extreme, fatalistic, exaggerated, or cynical) discussion about the issue in other forums. Here's hoping we can have some here! :)


UPDATE: Some useful analysis and opinion from elsewhere, to help the discussion along...
Volokh Defining the Limits of Interrogation
Balkinization What Hamdan Hath Wrought


Kevin said...

Though you moderate by saying it was "rather deceptive," substituting "any person" for "alien unlawful enemy combatant" seems "literally false" to me, and, sadly, the more I read the news, the less strange or unusual it seems.

My guess is that the author herself wrote it... hmmm... actually it looks like editors may have had that part removed from the text of the article, unless you linked a different Yahoo AP article? Your excerpt appears to be missing.


Kevin said...

Okay, perhaps you're more right and she was just being deceptive. :)

I did find the original you quoted here: Senate OKs Detainee Interrogation Bill, Sep 28, 8:55 PM (ET), By ANNE PLUMMER FLAHERTY.

The article you linked (Congress sends Bush terror tribunal bill, By ANNE PLUMMER FLAHERTY, Associated Press Writer, Fri Sep 29, 3:00 PM ET) has several spelling errors. Maybe it was done in a rush?


Kevin said...

The Balkinization blog also has a post by Marty Lederman that contains an interesting list of "flaws" that seems to be fairly representative of the more alarmist and, as far as I can tell, somewhat specious, view of the legislation. In both that thread and the thread you link, I've been impressed with the counterpoints raised by Bart DePalma, who seems to have a similar intent for his blog as we do for ours.

One point I haven't seen well refuted is that alien unlawful enemy combatants (AUECs) only recently obtained federal habeas rights from Rasul v. Bush in 2004. From Rules for Our War, By Lindsey Graham, Tuesday, December 6, 2005; Page A29:
Congress has been virtually AWOL on the status of enemy combatants, resulting in contradictory federal court decisions about detainees' legal rights. Because of Congress's inaction, the Supreme Court's ruling in the case of Rasul v. Bush allowed foreign national enemy combatants at Guantanamo Bay to be granted habeas corpus rights like American citizens.

In the past, federal courts have reviewed military tribunal verdicts involving enemy combatants who were charged with war crimes, but for the first time in the history of warfare, enemy prisoners were granted access to our federal courts to bring lawsuits against our own forces regarding their detention.

There are now close to 200 habeas petitions filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access and the right to view DVDs.

These lawsuits are undermining our ability to gain good intelligence and are placing federal courts in a role never before known in wartime.


Kevin said...

Just to close and round out my streak of posts in this thread, I recently came across a few more helpful rebuttals to the alarmist view, in the links at Olbermann Watch (in response to a recent Olbermann rant).

Specifically, I took a look at the National Review link where Andrew C. McCarthy wrote The New Detainee Law Does Not Deny Habeas Corpus: Fear not, New York Times, al Qaeda’s lawfare rights are still intact. And at Orrin Johnson's post on The Life and "Death" of Habeas Corpus.

Amongst other good points, the Detainee Treatment Act (DTA) enacted in December 2005 before the recent Military Commissions Act (MCA) of 2006, already requires the military to grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention and the right to appeal the judgement to U.S. Court of Appeals for the D.C. Circuit. This is essentially habeas corpus, and is still in effect.


Mark Congdon said...


Thanks for those articles. I tracked down the text of the DTA. After reading it, I would wish that it were more specific and binding. It appears to make various suggestions, and to require some very general oversight... but I would wish that it would rather set requirements and ask for specific reporting to Congress.

McCarthy's article in National Review was certainly detailed and helpful. However, it frustrates me (and rather presupposes his argument) that he calls the detainees terrorists. For example:

Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

Notice how he starts out calling the prisoner a "detainee", and ends up referring to him as "the terrorist".

The whole point of the DTA, as I understand it, is to determine whether the detainee is or is not a terrorist. If the detainee is a terrorist threat to the US, nobody is condoning his release. However, it is possible that some of our detainees are not actually terrorists; maybe they were apprehended under mistaken circumstances, or maybe the military took somebody in for questioning and information who had not themselves done anything wrong.

I am quite concerned about those situations, and would love to see the DTA strengthened to provide more timely and specific protections against that type of abuse of the system.

I don't think any substantive right of habeas corpus has been lost here, that previously existed. But I would like to see a more timely and enforceable right of habeas (in at least some form) given to our potentially long-term military detainees.


Kevin said...


I share your concern for people who are unjustly detained. I also wish the laws were easier to parse to make them clear and succinct. It is most disturbing when apparent legal scholars disagree to such an alarming extent, as some have in this case.

The DTA does apparently leave the specific procedures up to the President, but also requires continuing oversight by Congress. Section 1005 seems to describe that and, at a minimum, requires periodic review of any new evidence, and maybe even an annual review depending upon what 1005.a.1.A means. I'm not sure it is appropriate to significantly restrict the Executive during war beyond requiring transparency and oversight.

Like you, I am curious about the specific procedures for CSRT et al., that Congress should have by now, and how they codify our concerns for justifying detention in a timely fashion while also accounting for the unique and uncertain nature of war.

Wikipedia has an entry on CSRT, though it primarily seems to pertain to earlier cases before the more recent laws.

Regarding McCarthy's switch from "detainee" to "terrorist" after the appeal, perhaps the detainee may be considered a "terrorist" (or some other name indicating "guilt") after the ruling of a tribunal or court, much like a citizen may be considered a criminal after a court's judgement even though he may appeal. Then again, maybe it was a minor slip by McCarthy. :)


steviepinhead said...

I still haven't studied the actual wording of the law--that's still several items down on my "to-do" list, regrettably--but this recent Slate magazine article raises some concerns for me:
Again, I'm not yet in a position to agree or disagree with the author's interpretation of the law (and, maybe, in some respects, no one is--at least until certain aspects of the law have been tested in the courts) but I'd certainly be interested in your thoughts about this particular case or the broader viewpoints expressed.

Mark Congdon said...


That does seem like a troubling situation. Primarily, the fact that al-Marri was declared an enemy combatant after the fact, as a result of his unwillingness to cooperate with investigators. If that's all the reason they have for calling him an enemy combatant, that's a travesty.

On the other hand, I think the Slate article gets one key point wrong:

"The constitution says that Congress can suspend habeas rights only 'when in Cases of Rebellion or Invasion the public Safety may require it.' ... Congress didn't say anything about a rebellion or invasion when it passed the MCA. How could it have? No one has been storming the shores or fomenting insurrection lately."

I disagree with this assessment. 9/11 was an act of invasion. The group(s) that carried out that invasion are actively working to carry out another like it, as they constantly remind us through statements sent through the media. One of the primary tasks of our government in this age is to prevent those invasive attacks if at all possible.

So, I am theoretically in favor of the limited suspension of habeas rights in certain cases.

However, a possible material witness who won't cooperate with investigators? That's not anything close to sufficient reason to suspend habeas.

The Slate article also raises some concerns about how CSRTs are conducted, and the limitations of the court appeal that is provided. Those concerns make sense, and are more believable than most of the "sky is falling" reactions to the MCA that I heard initially. I'm definitely interested in having the law changed, if necessary, to ensure a fair hearing for these detainees with substantive accountability for their accusers from an informed, judicial party.

Thanks for the information... that helps me greatly in seeing a balanced perspective on this situation.


Kevin said...

Excellent and succinct points, Mark. I agree.

Here's a good summary of Ali Saleh Kahlah al-Marri's case from September 22, 2006: "Alleged al-Qaida hacker goes to court". And a summary of the findings (charges?) from the Rapp Declaration can be found on page 12,13 of this civil action.

My guess is that they had good cause to label him an "enemy combatant". Of course, his actual guilt alone does not validate the system.

Emily Bazelon states that al-Marri is "an utter departure from historical practice". As Mark notes, she is not taking into account the state of war. She also glibly ties him together with the Gitmo detainees ("Though they don't have the advantage of having been arrested in Peoria"), even though (AFAIK) enemies on foreign soil were historically under military law.

I am concerned about abuse, but how do we protect secret information and secret means of obtaining that information during a war? The defendant and even their lawyers may be untrustworthy. But is this an issue that is new to this war?

At the moment, I don't think enemy combatants should be processed by our civil judicial system, since war is so very different from civil life, and it would hinder our military.

I think Bazelon shows some bias in her presentation. But, in the end, even though I might not agree with her view, I think it is good that we eventually uncover exactly what is going on, so that we can make an informed decision and make the hearings as fair as is feasible.