PREAMBLE
Attached to this paper are the Presidential Order announcing the creation of military commissions for the trying of alleged terrorists, and the particular procedural rules promulgated by Secretary of Defense Donald Rumsfeld, by which the Administration seeks to implement the Order. See Attachments A and B.
You may ask yourselves, “Why should NACDL care?” First, as you read the Bush order and the Rumsfeld rules, please consider this: both appear to allow for prosecution before a tribunal for violations of the “laws of war” and “other violations of law.” When Deputy Attorney General Larry Thompson spoke with us in Miami (and when President Schwartz heard him again a few weeks later in California), he said that it was limited to the former. But this remains a troubling uncertainty, going to the very heart of what most of us, as non-military members of NACDL, do to uphold the Constitution of the United States and other principles of fundamental fairness.
But even if the prosecutions are limited to alleged violations of the “laws of war,” we think NACDL should still be troubled, and proactive in its concerns. The National Association of Criminal Defense Lawyers, whose members have dedicated their professional lives to defending the Constitution, should, and does, support the efforts to bring to justice those responsible for the September 11, 2001, attacks on our country. However, because the rest of the world will note how we treat those persons captured by American forces in the military actions against terrorism, it is imperative not only that we set the example for fair and humane treatment, but that our efforts be perceived as fair and just. The United States cannot be, or be viewed as being, less lawful than those we seek to defeat militarily.
Indeed, to be so viewed imperils the lives of our men and women in uniform across the world. It is important to note that one of the things that the North Vietnamese did initially to our United States POWs during the Vietnam War was to declare them "criminals", "international bandits," etc., instead of affording them POW status. For those of us who are veterans, the use of these commissions should suggest a clear and present danger that should one of our servicemembers get captured, their "status" will be the same: “international criminals." Indeed, during the 1991 Gulf War, a female pilot and her crew were shot down and captured by the Iraqis, and she was repeatedly raped, tortured and otherwise degraded. See, e.g., Attachments C and D.
Our dedication to the rule of law drives our positions on the creation of military commissions and the rules that will govern them. We objected to the creation of these particular military commissions by the presidential order of November 13, 2001, on the basis that the President was not empowered by law to unilaterally create these commissions.(fn 2)
With that position unchanged, this paper represents our suggested view of the procedures that have now been officially promulgated by the Administration to govern such commissions, as announced by the Secretary of Defense on March 21, 2002.
POSITION
The Preamble to the Manual for Courts-Martial (2000), Paragraph 2(b)(2), states that such commissions “. . . shall be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial.” We think NACDL should support this principle. Fundamentally, because the rules promulgated by the Secretary of Defense do not comply with the provisions of the Manual for Courts-Martial, we believe NACDL should oppose their implementation.
In addition, as addressed in more detail below, because certain of the promulgated procedures violate principles of fundamental fairness and would cause the United States to be viewed in a very negative manner by the international community, we think NACDL should oppose their implementation and urge the Secretary of Defense to use the authority given to him to amend his Order of March 21, 2002. Without wavering from our earlier objection to the commissions as apparently unconstitutionally created, we believe NACDL should urge the repeal and/or modification of the rules through efforts in Congress and the appropriate judicial fora, if need be. We remain unsure as a group whether NACDL should encourage its members, or convene a task force of its leaders and members, to act as “civilian counsel” to the accused before these commissions.
UNACCEPTABLE FEATURES OF THE CURRENT ADMINISTRATION RULES
The rules for these commissions as currently promulgated do not meaningfully provide for basic rights. For example, hearsay (“unsworn”) statements are allowed as evidence. It is also unclear whether there is any real right to “appeal” the commission’s decisions. Nor is it clear what court would have jurisdiction, under what authority, to so review these proceedings.
Moreover, the accused can be excluded from the proceedings (and not just because he or she is disruptive), and his or her lawyer barred from conferring with the accused, or even telling him or her what transpired while so barred. The Rumsfeld rules allow not only one’s “civilian counsel,” but indeed the accused, to be excluded from at least part of the proceedings, and prohibit the “detailed” military defense counsel (who is the only one who cannot be so excluded) from disclosing to the accused and/or civilian counsel -- or consulting with them concerning -- what transpired before the commission while they are excluded.(fn 3)
In particular, following are specific unacceptable provisions of the rules promulgated to date that we have identified:
- Failure to provide for questioning of potential commission members for possible challenge (no voir dire).
- Failure to provide for challenges for cause of the potential members.
- Failure to provide for peremptory challenge of the potential members.
- Failure to provide for challenge for cause of the presiding officer.
- Failure to ensure that the accused can confront all witnesses against him by being present at all sessions of the commission (unless he is disruptive).
- Failure to permit civilian defense counsel to be present at all sessions of the commission.
- Failure to provide that the presiding officer makes binding rulings of law, and otherwise presides as does a military judge under the UCMJ.
- Failure to provide maximum sentences for specific offenses.
- Failure to provide what crimes can result in the death penalty, and to require notice from the prosecution in advance of trial.
- Failure to specifically provide that the principle of double jeopardy applies.
- Failure to provide that the Rules of Evidence or their equivalent apply.
- Failure to provide for a meaningful appeal, including review by the United States Court of Appeals for the Armed Forces (USCAAF) for sentences above a certain level.
- Failure to provide for equal requirements and treatment of civilian attorneys, whether they are prosecutors or defense counsel.
- Failure to prohibit members of a commission from discussing a case until the evidence is closed and deliberations occur.
- Failure to provide the right to confront all witnesses, including those who testify in sessions from which the accused and/or civilian defense counsel are excluded and whose testimony detailed defense counsel may not discuss with the accused.
- Failure to exclude unreliable evidence, such as unsworn statements.
Each of the foregoing omissions and failures in the current rules relate to rights or procedures provided to the accused in a trial under the Uniform Code of Military Justice (UCMJ), 10 USC 801 et seq., which grew out of the norms of the Geneva conventions. The Manual for Courts-Martial abides by these norms. For example, the military rules of evidence essentially track the federal Rules of Evidence.
We recognize that the full protections afforded by the UCMJ are not provided because the Secretary of Defense does not recognize potential defendants as prisoners of war. Nonetheless, we believe the foregoing failures are egregious denials of fundamental fairness that must be accorded any accused tried by a United States tribunal of any kind. To do less subjects our nation to ridicule by the international community. Worse, it subjects American service personnel captured in a future armed conflict to the same type of unacceptable and unfair treatment by their captors.
The Uniform Code of Military Justice is tried and true. Indeed, as both Congress and the President already had this system set up, two questions seem obvious: What is the legal basis for creating a totally alien system, and furthermore, why is it even necessary?
It is important to note that in 1950, when Congress passed the UCMJ, and in 1951 when the first Manual for Courts-Martial (MCM) was promulgated under the UCMJ, there was an acute awareness of and specific intent to comply with the then recently ratified 1949 Geneva Conventions. The UCMJ/MCM system unequivocally complied with that. This ad hoc committee believes that if we used our courts-martial system, there could be no question of our compliance with international law, and no real issue as to due process for these cases.
In short, the commissions promulgated by the Administration are inappropriate not only because they do not comply with fundamental domestic law (i.e., the UCMJ), but because they do not comply with our treaties, the Geneva conventions, and the basic "laws of war."
WHERE SHOULD NACDL STAND?
WHAT, IF ANYTHING, SHOULD NACDL DO?
We believe the Board of Directors should adopt the proposed resolution accompanying this paper. We believe it lays out what the organization’s position should be, which is that the UCMJ, and the Manual for Courts-Martial should, at least, apply to these commissions. And we think the organization should, within its practical resources, work both alone and with the diversity of coalitions we think should exist, to make this vision a reality. In our view, this would include work within the Administration (e.g., DOJ dialogue), in the Congress (legislative efforts), and in the courts, to the extent possible.
Following are some potential areas for NACDL efforts that we think require careful Board consideration.
Administration Efforts?
We think that NADCL direct and coalition channels of communication within the Administration must be pursued.
Congressional Efforts?
Bills Attached is a summary of currently proposed legislation in the area. None of these bills would apply the entire UCMJ and the Manual for Courts-Martial to these commissions. A lot of work remains to be done here.
Appropriations for “Civilian Counsel” There is no appropriation made for appointed “civilian counsel.” Moreover, there do not appear to be any accommodations for such counsel on Guantanamo (assuming that is where these proceedings will take place).
We don't know whether Congress would be willing to expand Criminal Justice Act (CJA) lawyer and federal public defender roles and funding to take on the representation of detainees before the commissions. It is also unclear how the appropriations process for appointed civilian counsel funding would work (these are not Article III tribunals).
As best we can discern, absent congressional approval of funding, we don't see any defense counsel role for CJA lawyers or federal public defenders in the military commissions as currently proposed by the Bush Administration. Should there be provisions for civilian counsel and for the appointment of federal defender or CJA counsel? Certainly, and, in particular, if we wish to assure the world that the detainees will be receiving due process. However, if we want the federal defenders and CJA counsel involved, we would have to get enabling legislation, as well as funding. Kathryn Kase and Kyle O’Dowd can address additional questions about the court-appointed counsel issue.
Commissions and Court Efforts?
One thought we have considered is should NACDL try to dedicate itself in an organized fashion to supplying “civilian counsel” resources to the detainees (along the lines of what it did for the Wounded Knee cause)? We do not have a group view on this. We do believe it warrants cautious and careful discussion by the Board, along the following suggested lines of consideration.
There is a very valid concern, expressed strongly by at least one member of our ad hoc committee, that NACDL should not be doing anything for the detainees in Guantanamo that we do not do for our own service personnel. We do not provide civilian counsel for our own military people, nor does CJA, the federal defenders, etc. Is it not wrong, as well as bad policy for NACDL to even appear to be giving people who were captured fighting American forces more consideration than we give to our own service members?
Also, any such effort may be extremely impractical. Recall there are no funds available for such efforts, nor even any accommodations for such counsel on Guantanamo (once again, assuming that is where the proceedings would take place).
However, conceivably, we think the Board might consider whether any role, within the fold of “civilian counsel,” could allow for a “standing” toehold to make court challenges -- either before Article III courts (habeas?), the U.S. Courts of Appeals for the Armed Forces (All Writs Act and/or habeas?), and/or international tribunals -- in order to effectuate the rule changes we agree should be made. See, e.g., Attachment E.
We note that any such lawyers would need high-level security clearances, according to the rules. Some of NACDL’s leaders and members have that. And it does not appear the counsel would be able to pursue a full-scale defense of the detainees, for several practical reasons (e.g., costs and no place to stay). But is there perhaps some more limited, consulting role to play here, to secure some “standing” for challenges to effectuate change? Would it allow us to help monitor for any abuses and call attention to them?
Don Rehkopf will be in Cincinnati to address the possibility for All Writs Act and/or habeas challenges before the USCAAF.(fn 4) We expect Hank Asbill also will be on hand to discuss recent Article III court habeas efforts he and his firm are exploring in D.C. See Attachment F.
1. President Schwartz recently convened an ad hoc committee to study the current Administration’s promulgations and efforts regarding “military tribunals” and to present to the Board of Directors for discussion background materials, possible NACDL positions and actions. Those serving on the ad hoc committee are: Leslie Hagin, Terri Jacobs, Kathryn Kase, Donald Rehkopf and Jack Zimmermann. The ad hoc committee offers this paper, an accompanying proposed resolution, and background materials, for Board of Directors discussion and possible action at the May 2002 meeting in Cincinnati, Ohio.
2. The power of the President as “commander in chief” to establish these commissions and rules may not actually exist. This power appears to reside with Congress, under Art. I, sec. 8. Congress has not declared "war," nor has Congress authorized any "tribunals" to hear these cases. It has not exercised its power under Art. I, sec. 8, cl. 10, (at least as applicable here) to "define and punish . . . offenses against the Law of Nations." Article I, Section 8, of the U.S. Constitution gives Congress, not the President, the sole power "[t]o define and punish . . . Offenses against the Law of Nations;" and "To . . . make Rules concerning Captures on Land and Water." These are what we refer to as the "enumerated powers" of Congress. Article II, Section 2, only designates the President to act as the "Commander in Chief" of the military forces -- it appears to give him no power to do anything else, as the Youngstown Sheet and Tube case specifically holds.
3. While one has a right to a “detailed” military defense counsel, there is no “right” to civilian counsel unless one can pay for him or her. There are no “CJA”-type appropriations made. Also, there is no place for such a civilian counsel to stay on Guantanamo (assuming that is where these proceedings will take place).
4. The All Writs Act, 28 USC 1651, a jurisdictional grant for "Extraordinary Writs," applies to the military in criminal prosecutions. See generally Noyd v. Bond, 395 US 683 (1969). Thus, under Art. 67, 10 USC 867, the US Court of Appeal for the Armed Forces (USCAAF) could perhaps entertain an appropriate Writ Application. This Court is a civilian court based in Washington, DC, staffed with civilian federal judges, and is properly a "federal court," even though created as an Article I court versus the traditional Article III federal court.