Download Military Commissions Act 2009

Military Commissions Act
2006 vs. 2009
Kailyn McGillicuddy
Hilary Panfili
MCA 2006 History

The Military Commissions Act of 2006 establishes
procedures governing the use of Military Commissions
to try alien unlawful enemy combatants engaged in
hostilities against the United States for violations of the
law of war and other offenses triable by Military
Commission. The Military Commissions Act of 2006
authorizes the President to establish Military
Commissions.
MCA 2006 History Cont’d





MCA 2006 was signed into law by George W. Bush on 17
October 2006.
MCA 2006 was drafted in the wake of Hamden v.
Rumsfeld.
Military Commissions have been used to prosecute enemy
combatants who violate the laws of war.
The last time the United States used the Military
Commission process was during World War II.
After Al Odah v. United States, Section 7 was found
unconstitutional by the Supreme Court on 12 June 2008.
MCA 2009 History

MCA 2009 was signed into law by Barack H. Obama on 28
October 2009.

Defense Officials have 90 days to update rules and
procedures for the commissions.
General Provisions
MCA 2009 retains the basic structure of MCA 2006
 A military judge presides over the trial
 Panel can range from 5 to 12 (for potential death
sentence cases)
 The president must approve executions
 Excludes statements obtained through torture
 Permits hearsay and coerced statements, within limits
 Defendants have right to be present and to see
classified evidence but may be excluded for being
disruptive

General Provisions Cont’d
Prosecutors are required to disclose exculpatory
evidence against government witnesses
 Appeals are permitted
 Jurisdiction over 32 crimes, mostly war crimes



Also covers conspiracy and providing material support for
terrorism
Defendants must have good legal assistance
Leading Cases (MCA 2006)

First used on November 13, 2006


Ali Saleh Kahlah al-Marri
3 Cases

David Matthew Hicks


Omar Khadr


Pled guilty
Dismissed on jurisdictional grounds
Salim Ahmed Hamden

Dismissed on jurisdictional grounds
Hamdan v. Rumsfeld
Bush Administration had taken the position that the
Geneva Conventions did not apply to members of Al
Qaeda captured in the global “war on terror.”
 The Court- “some minimal protection, falling short of
full protection under the Conventions, to [any]
individuals ... who are involved in a conflict in the
territory of a signatory.”
 Military Commission Act (MCA) of 2006

MCA 2009: Major Changes
Unlawful Enemy Combatant vs. Unprivileged Enemy
Belligerent
 Ex Post Facto Concerns
 Purposeful and Material Support
 “War on Terror”
 Aliens and Children
 Admission of Hearsay Evidence/Use of Classified
Evidence
 Defense Resources

Military Commissions Claim to
Provide…
A fair trial in accordance with the applicable laws of
war
 All the necessary judicial guarantees which are
recognized as indispensible by civilized peoples for
purposes of common Article 3 of the Geneva
Conventions
 Appropriate protection of national security interests
 Protection and safety for all personnel participating in
the process, including the accused

Problems with MCA 2006
Unconstitutional suspension of habeas corpus
 Unconstitutional ex post facto law
 Protections from criminal and civil prosecutions for
previous instances of alleged torture
 Violation of human rights

The Obama Administration’s
Position


“[T]he decisions that were made
over the last eight years
established an ad hoc legal
approach for fighting terrorism
that was neither effective nor
sustainable - a framework that
failed to rely on our legal
traditions and time-tested
institutions; that failed to use our
values as a compass.”
“For over seven years, we have
detained hundreds of people at
Guantanamo. During that time,
the system of Military
Commissions at Guantanamo
succeeded in convicting a grand
total of three suspected
terrorists.”-President Obama National
Archives Museum, Washington, D.C. May 21,
2009
Military Commission Act 2009



The Military Commissions Act
of 2009 was approved by a
vote of 281-146 as part of the
National Defense
Authorization Act
Provisions provide for
limitations on the use of
hearsay or coerced evidence
and greater defense access to
witnesses and evidence.
The Military Commissions Act
is meant to ensure that military
commission trials will be fair
and that convictions obtained
will be secure.
MCA 2009
Forbids the use of detainee statements
obtained through torture, coercion, or
cruel, inhuman and degrading treatment
Guarantees detainees military lawyers at
government expense or give defendants
the option of hiring civilian lawyers or
relying on ones willing to work at no cost
Detainees facing a possible death sentence
would be entitled to two attorneys at
government expense
Detainees could attend all sessions, crossexamine government witnesses and
present their own
They could not be forced to testify against
their will
Hearsay testimony could be offered by either
side but would have to be deemed
reliable and relevant to be admitted
Issue
Has the Military
Commissions Act of
2009 improved the
creditability of US
military commissions?
 Is a legitimate due
process established in the
MCA of 2009?

Pros

First, the legislation comes closer to standard international humanitarian law lexicon in addressing itself
to “alien unprivileged enemy belligerents” rather than “alien unlawful combatants.” Thus, the basic
concept statutory provision has been changed from:
§ 948b. Military commissions generally

(a) Purpose. This chapter establishes procedures governing the use of military commissions to try
alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law
of war and other offenses triable by military commission.
to:
(a) Purpose. This chapter establishes procedures governing the use of military commissions to try alien
unprivileged enemy belligerents for violations of the law of war and other offenses triable by military
commission.





An “alien unprivileged enemy belligerent” is defined at Sec. 948a(7) as:
an individual (other than a privileged belligerent) who—
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition
partners; or
(C) is a member of al Qaeda.
Geneva Conventions


The status of the Geneva Conventions
as a source of law has been elevated
considerably. Originally, the legislation
purported to prevent the treaties'
invocation in any setting and for any
purpose.
The new language accepts that the
Conventions may be applicable
offensively in habeas proceedings or
defensively in penal proceedings by
providing only that they may not give
rise to an independent cause of action.
Common Article 3
Congress has deleted reference to the
status of military commissions as
“regularly constituted courts”
affording the necessary “judicial
guarantees” for the purpose of
common Article 3. The original
legislation — passed in the wake of
Hamdan v. Rumsfeld (2006), which
classified the armed conflict with Al
Qaeda and the deposed Taliban as a
Common-Article-3 non-international
armed conflict, at a minimum —
boldly asserted that the military
commissions satisfied common
Article 3, as if the courts would
simply accept such a claim.
Status of commissions under common
Article 3. A military commission
established under this chapter is a
regularly constituted court, affording
all the necessary "judicial guarantees
which are recognized as indispensable
by civilized peoples" for purposes of
common Article 3 of the Geneva
Conventions.

The legislation includes at §950p(c) a more
explicit war nexus, thus limiting the ability of
the government to use military commissions to
prosecute crimes that occurred prior to the
initiation of an armed conflict involving the
U.S. The starting date for any conflict involving
the U.S. has never been definitively established,
but any such armed conflict likely commenced
on September 11th at the earliest and October
7, 2001 (when the U.S. invaded Afghanistan) at
the latest. (Although Justice Thomas in
Hamdan and others have argued that any
armed conflict was initiated earlier, either when
Al Qaeda "declared war" on the U.S. (Justice
Thomas's theory) or attacked our embassies in
Kenya & Tanzania). The new war nexus states:

(c) Common Circumstances—An offense
specified in this subchapter is triable by military
commission under this chapter only if the
offense is committed in the context of and
associated with armed conflict.
Incidentally, the formulation of the war
nexus is identical to that in the ICC's
elements of crimes.
Spying
The crime of spying has been slightly redefined to more clearly reference the law of war
(added text in bold):

Any person subject to this chapter who, in violation of the law of war and with intent or reason to
believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects
or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose
of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy,
shall be punished by death or such other punishment as a military commission under this chapter may direct.
Congress would have done better to cut more deeply into the list of purported war crimes to
cull out all the novel offenses, including





* inchoate conspiracy,
* material support for terrorism
* and murder of a privileged combatant
rather the leaving the task of determining their comprehensibility to the commissions (and
the courts if they're allowed to get their hands on these cases). Had the crime of conspiracy
actually been deleted as was obviously contemplated, many of the existing military
commission cases would have had to be re-worked in light of the heavy reliance on that
charge.
Cons

The legislation still asserts that it does not create any new crimes. The 2006 MCA stated
that all of its enumerated crimes pre-existed its enactment and thus could be invoked in a
criminal prosecution arising out of pre-2006 events, such as the attacks of 9/11 or even the
U.S.S. Cole and Khobar Towers attacks.
The drafted version of the legislation that did not get passed had more appropriately hedged
this a bit when it stated:
§ 950p. Definitions; construction of certain offenses; common circumstances


(d) Offenses Encompassed Under Law of War—To the extent that the provisions of this
subchapter codify offenses that have traditionally been triable under the law of war or
otherwise triable by military commission, this subchapter does not preclude trial for
offenses that occurred before the date of the enactment of the National Defense
Authorization Act for Fiscal Year 2010.

This language, which acknowledges that just because Congress says something was already
penalized by the law of war does not make it so, unfortunately did not make it into the final
legislation. New Section 950p(d) has the same effect as the language in the 2006 MCA.
Conspiracy

Conspiracy (the charge of choice
before military commissions) is still
listed as a substantive crime. The new
MCA still allows for the prosecution
of an inchoate crime of conspiracy,
notwithstanding that a plurality of the
Supreme Court in Hamdan
determined that no such crime exists
under the law of war. Had the draft
language been adopted, conspiracies
would have been prosecutable only as
a form of responsibility when some
substantive war crime that was the
object of the conspiracy was
committed.
Purposeful and Material Support
This new law uses the same
language regarding support as
the previous law did. The test,
in both laws, is whether a
person has "purposefully and
materially supported
hostilities against the United
States.”
This is the law's second ground
for eligibility for trial before a
military commission;
The first ground is that the
person actually engaged in
hostilities against the U.S. or
its allies.
The Overbroad "War on Terror" (or War on Al
Qaeda, the Taliban and Associated Groups)

Like the previous legislation,
it seems to take an extremely
broad view of the "hostilities"
with Al Qaeda, suggesting
that the armed conflict may
have begun even before the
September 11, 2001 attacks.
In its section 948d, covering
the commissions' jurisdiction,
the law specifically states that
it covers offenses committed
"before, on or after
September 11, 2001.”
*It's worth noting, that some
detainees have been charged in
military commissions with offenses
dating back to 1996.
Too Much, Too Little


The law is also overbroad in
that it fails to exempt from
its jurisdiction the class of
children – or, more
specifically, the class of those
people who allegedly
committed the relevant
offenses when they were
under the age of 18.
The new law is too limited in
the sense that it only covers
aliens.
Policy Proposal
The US join the ICC to prosecute war crimes, if DOJ
does not wish to prosecute in federal court. While
Military Commissions have had a long history of
useful service we should join the rest of the world in
a legitimate sustainable way of prosecuting war
crimes.
Implications
This means giving up jurisdiction but also giving
decisions more creditability.
 This would create a consistent standard for prosecution
of war crimes.
 Joining the ICC would most likely slow down
prosecution of war crimes.
