How The Military Commissions Act of 2006 Threatens Judicial Independence: Attempting to Keep the Courts Out of the Business of Geneva Conventions Enforcement

Hailed first as a triumph of bipartisan compromise, the Military Commissions Act of 2006 (MCA) is now the focus of fierce criticism. Along the way, the MCA's sponsor, Senator John Warner (R-VA), and his colleagues Senators John McCain (R-AR) and Lindsay Graham (R-SC) capitulated on fair-trial rules and allowed incursions on the principle that cruel and inhumane treatment would be clearly criminalized.

These ugly compromises, rightly, have been well-publicized. Less remarked, but equally important, are the MCA's incursions on judicial independence, which I will address here.

The Federal Courts' Role in Wartime: In Early American History, and Now

Since the Founding, federal courts supervised executive conduct in wartime, even toward "enemy aliens" - and at times, found the executive had exceeded its legislatively defined power.

In 1804, in the Flying Fish case, Chief Justice John Marshall held a seizure of a French ship ultra vires because it went beyond the authority Congress had granted the President.

And in December 1813, Marshall, while riding circuit, heard a habeas corpus petition from Charles Williams, a British citizen detained as an "enemy alien" in the War of 1812. The circuit court ordered Williams released for want of legal authority.

In the past five years, this basic, long-established principle that the federal courts may oversee executive power over enemy aliens in wartime has come under direct assault.

A December 28, 2001 Office of Legal Counsel memo argued that courts simply had no jurisdiction over detainee operations at Guantánamo - though the military base there is plainly under U.S. control. In 2004, the Supreme Court decisively rebuffed this claim in Rasul v. Bush.

Since at least 2002, the Executive Branch has also argued that it, and it alone, is entitled to judge who is, and is not, an "enemy combatant." The issue reached the Supreme Court in 2004, in Hamdi v. Rumsfeld. The Court held that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." In his concurring opinion, Justice Souter specifically took the government to task for proposing judicial review of "enemy combatant" designations "so limited" as to "be virtually worthless as a way to contest detention."

The MCA's First Gambit to Shut the Federal Courts Out: No Private Rights

This year, in Hamdan v. Rumsfeld, the Court held that the military commissions envisioned by President Bush needed Congressional approval, in part because they violated standards established in Common Article 3 of the Geneva Conventions, which, the Court found to apply by virtue of a provision in the Uniform Code of Military Justice. As in the Flying Fish case, the Court showed itself capable of ensuring compliance with the laws of war.

But the MCA makes three gambits to clear the federal courts from the playing field entirely, focusing on the courts' ability to ensure compliance with laws of war long accepted by the United States. Each attacks the Supreme Court's holding in Hamdan. Each is constitutionally suspect. And each will yield needless litigation that will clog the courts and delay the release of likely innocent detainees held by the United States.

First, MCA Section 7 states, "No person may invoke" international humanitarian law "as a source of rights." That is, you may, in theory, have rights, but don't you dare use them.

The sweep of this provision is dangerously unclear.

The Geneva Conventions are part of the law of the United States, as the Supreme Court held. (Treaties are as much the law of the land as statutes are, and Geneva, again, applies by virtue of UCMJ as well.) What does it mean for them to be part of our law if they are not "a source of rights"?

Does it mean that they cannot be the basis of a lawsuit by any private plaintiff (except, that is, the government itself)? If so, then ironically, the MCA would likely have shut down even the case that gave rise to the MCA itself - in which Salim Hamdan successfully argued in the Supreme Court that the Geneva Conventions barred the kind of military commission proposed by the executive branch to try him.

Such a gambit may itself be unconstitutional. Though Congress may sometimes limit Court jurisdiction, this kind of limit - designed to single out and to thwart the effect of Court decisions Congress dislikes, and to pre-empt further disfavored holdings - squarely presents separation-of-powers problems.

The MCA's Second Gambit: Let the President Interpret the Geneva Conventions

The second gambit to keep the courts out of the tribunals issue comes in Section 8 of the MCA. That section purports to give the President the "authority … to interpret the meaning and application of the Geneva Conventions," and states that his formal interpretations will be "authoritative … in the same manner as other administrative regulations."

A companion provision also states that no "foreign or international law shall supply a rule of decision" in court. This seems targeted at a portion of Hamdan in which a plurality invoked international law precedent to conclude that conspiracy was not a war crime.

Again, these provisions are no model of clarity. Might Section 8, however, be invoked as an effort to render presidential readings of treaties final and binding on the courts?

And what happens when the executive reads Geneva in a clearly unreasonable way?

This Administration has insisted that interrogation methods such as stress positions, religious and sexual humiliation, and sleep deprivation are "humane" enough that they do not qualify as Geneva Convention violations. Indeed, Deputy Defense Secretary Gordon England said as much in a post-Hamdan memo claiming that the executive had been hewing to Common Article 3 of the Geneva Conventions all along.

In another important reading of Geneva, the Administration went from the premise that the Taliban or al Qaeda are not POWs, to the conclusion that no battlefield status hearings were needed to sift combatants from civilians, such as Afghan shepherds and farmers, who were inadvertently seized. The result, of course, was detention operations that were criticized the world over.

The MCA's Third Gambit: No Federal Court Review of Factfinding

Lastly--and most importantly--the MCA attempts to strip federal court jurisdiction over any challenge to the detention of any non-citizen by the United States overseas.

Some background is necessary here: Recall that, in 2004, the Supreme Court ruled in Rasul v. Bush that Guantánamo detainees can bring habeas corpus petitions. In the wake of the ruling, more petitions were filed challenging the factual and legal bases of particular Guantánamo detentions. In the December 2005 Detainee Treatment Act (DTA), Congress purported to channel all such proceedings into the U.S. Court of Appeals for the D.C. Circuit. But the Supreme Court, this year, in Hamdan, held that critical provisions of that Act only applied to suits filed after the DTA was enacted (that is, filed after December 2005).

The MCA tries to overrule this part of Hamdan, and send even the pre-December 2005 Guantánamo suits to the D.C. Circuit Court of Appeals. Moreover, it would sweep far more broadly than the DTA, encompassing all petitions arising all detentions of all non-citizens--including at the hands of the CIA--anywhere outside the United States.

What's so bad, readers may wonder, about petitions going straight to the D.C. Circuit Court of Appeals? The problem is that the MCA does not afford the chance for factfinding by any neutral decisionmaker. (Recall that Hamdi put a constitutional premium on having a "neutral decisionmaker") Sending all petitions to the United States District Court in D.C., where a hearing on the facts is possible, would be acceptable; sending them straight to the appeals court is not.

For Guantánamo detainees have never had a meaningful chance to challenge the facts on which their detention is based. They had no battlefield status hearings. At hearings at Guantánamo before Combatant Status Review Tribunals (CSRTs), detainees were asked to respond to vague allegations of "associating" with terrorists, based on facts and allegations to which they were not privy. The CSRTs, in short, were a charade. And whatever equivalents to CSRTs may be used in CIA secret prisons abroad--if any - are surely no less a mockery of due process.

No wonder that, as the Center for Constitutional Rights has shown, many of the Guantánamo detentions are likely erroneous: For example, why are we detaining an 80-year-old Afghan man seized when he complained about his son's detention? Or a Sudanese aid worker whose detention was described as "unconscionable" by military officers?

In D.C. Circuit proceedings, detainees will have no opportunity to supplement the resulting incomplete records from the CSRTs. There are no facts except those the Government chooses to present. Perhaps the judges of the D.C. Circuit will refuse to partake in these travesties of proceedings. Perhaps. But the statute does not give them power to ensure compliance with Due Process by sending petitions to federal district court for meaningful factfinding.

The MCA's triple assault doesn't just assail Hamdan, harm the courts, and undercut the abstract principle of judicial independence. It also inflicts collateral damage by degrading America's reputation for decency and fairness among friends and foes at a time when we need all the allies we can muster. The MCA should not become law - and if it does become law, its patent due process violations should doom it to be struck down as unconstitutional.