Congress urgently needs to take up the task of deciding how the nation judges accused terrorists.
Ruling June 29 on the issue of military tribunals, the U.S. Supreme Court divided into three camps, with 180 pages in six separate opinions.
Four justices (including three who participated in the case and Chief Justice John Roberts, who recused himself because he ruled for the government in the same case at the U.S. Court of Appeals level) would allow military commission trials to proceed as currently structured.
Four justices believe since Congress has not issued the president a “blank check” in the war on terror, specific congressional authorization is required to proceed with any commission system different from military courts martial.
Finally, despite being author of the majority opinion, Justice John Paul Stevens constitutes a “majority” of one in his belief that military commissions are structurally unsound, contrary to international law and possibly beyond congressional remedy.
There is a justified rebuke to the Bush administration in this controversy, but it involves the administration’s overall approach to implementing military commissions rather than the idea of using them for trial of accused terrorists.
It has long been our view that congressional legislation is needed to authorize use of military tribunals.
President Bush declined to seek such approval, despite the opportunity presented by GOP Sen. Arlen Specter’s 2002 proposal for a bill to authorize military commissions. This Supreme Court decision arises in a highly charged political context where the administration has arrogated power to itself and acted unilaterally in the field of foreign and security affairs, both with regard to Congress and our international allies.
It may sound persuasive to argue that a president at war inherently possesses in his constitutional “toolbox” all the tools necessary for national defense, including the option of military commission trials for enemy combatants. This administration knew all along that there were well-supported arguments centered on the lack of specific congressional authorization for the commissions. And, given Republican control of Congress, it would have made sense for the plans for military commissions to have been submitted for congressional review and approval.
Now, we are five years down the road and the delays occasioned by the administration’s bumbling may foreclose any possibility of appropriate punishment of the war criminals. The only fall-back argument will be for the detention of combatants until conclusion of the conflict, but the court’s decision in the Hamdan vs. Rumsfeld case has revived the possibility of civilian- court jurisdiction for combatant challenges to detention. The course we are on is headed for a “catch-and-release” program for war criminals.
Instead, we must determine how to make military commissions work. It is time for Congress to exercise its constitutional authority before the next attack on an American city.
Congress should find plenty to fix in the Stevens opinion.
Stevens suggests that the jurisdiction of a military commission is somehow confined to the theater and time of the conflict. This is a conflict where al-Qaeda headquarters in Afghanistan first plotted to bomb American embassies in East Africa, then conspired with cells in Germany and Spain to drive jetliners into office buildings in New York City. The “theater” of this conflict is plainly the entire world. The timing of the conflict, in Stevens’ view, dated from the congressional “use of force” resolution passed some days after the Sept. 11 attacks. The Stevens “one-bite-rule” allows terrorists to take their best shot at a massacre without military-commission jurisdiction arising until the congressional declaration in response. Congress should repudiate such notions that offend common sense and provide by legislations for broad jurisdiction for the commissions.
As an alternative ground for striking the military commission trial of Salim Ahmed Hamdan, Stevens and three colleagues concluded that a charge of conspiracy did not qualify as a war crime subject to a military commission. Some might find it puzzling that conspiracy to commit mass murder of civilians would not be a war crime. Justice Kennedy virtually invited Congress to address this question in his concurring opinion.
Stevens condemned the commission standard for admission of evidence, as opposed to strict application of the rules of evidence prevalent in civilian and regular military courts. The hearsay rule requires direct testimony of witnesses, subject to cross-examination by the defense. Bearing in mind that a number of the current detainees picked up in Afghanistan and elsewhere, the direct witnesses to war crimes, might be people in foreign countries beyond the reach of compulsory process, Congress might want to adopt a more relaxed standard of admission of evidence before military commissions.
Finally, Congress should put an end to the nonsense that the Geneva Conventions, which were designed for the protection of legitimate prisoners of war, should be applied to card-carrying members of al-Qaeda. The court arrived at this conclusion through the rhetorical contortionism of saying that the war against al-Qaeda qualifies as an “armed conflict not of international character.” The president’s determination to the contrary seems more reasonable. Congressional legislation must make it clear that no court will have jurisdiction to afford Geneva Convention protections to terrorists until and unless Osama bin Laden and the other terrorists sign the conventions and then abide by them by providing responsible command for their cadres, dressing them in uniforms, and directing their attacks exclusively against military targets.
This legislation should be undertaken in a cooperative effort between the two parties, aimed at providing accused terrorists the process that they are due but no more. Practicality and election-year wisdom should lead both parties to undertake a cooperative effort aimed at providing accused terrorists the process they are due, but no more. Congress should make it clear that President Bush’s overly unilateralist “majority of one” in the design of military tribunals will not be substituted with the John Paul Stevens’ judicial “majority of one.”
Neal Richardson is a Denver deputy district attorney, and Spencer Crona is in private practice. They have written widely on the subject of military tribunals.
