Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

8/22 Motions Session #8: Does the MCA Discriminate Unlawfully?

Raffaela Wakeman, Wells Bennett
Thursday, August 22, 2013, 3:56 PM

Lt. Col. Sterling Thomas argues now in connection with AE106.  In that motion, the defense says the case should be dismissed because the 2009 Military Commissions Act violates due process.

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Lt. Col. Sterling Thomas argues now in connection with AE106.  In that motion, the defense says the case should be dismissed because the 2009 Military Commissions Act violates due process.

By this the motion and Thomas both refer to the discriminatory aspect of the Act’s jurisdictional rules: only aliens can be tried in a military commission.  That runs counter to equal protection principles embedded in the Fifth Amendment, and puts the United States, in Thomas’s view, in quite dubious company.  The Nazis, for one, had discriminatory courts.  The lawyer then disposes of some seemingly unfavorable authority: Hamdan vacated the CMCR opinion in that case, as everybody knows.  That dissolved not only the international law analysis of the substantive offenses---but also the CMCR’s equal protection analysis, which rejected Hamdan’s anti-discrimination arguments.  The ruling thus in no way precludes Al-Baluchi’s equal protection position here.  And with the CMCR’s ruling out of the way, Thomas argues, we are left only with Boumediene’s application of the Supreme Court’s “impractical and anomalous” analysis, so far as concerns the application of key constitutional provisions at Guantanamo.

So: can it really be “impractical and anomalous,” to try citizens in military commissions?  Surely not, argues Thomas, answering his own question.  To prove that point, he cites some big Lawfare names: Haupt, Joshua Smith, and other citizens tried throughout the years in commissions.  The lawyer then transitions to equal protection mechanics, arguing that alienage discrimination must trigger strict scrutiny---a standard which the Act would surely flunk.  (No government-friendly rational basis stuff here.)  The court: so GTMO detainees hold individual rights, or are you talking about a structural limit on congressional power?  Sterling: both, judge.  Then a little technica fills the air, as Sterling walks the judge through his claim that the MCA’s unconstitutional jurisdictional provision cannot be severed from the larger statute. Thus, he says, the whole kit and kaboodle must be struck down.

Over to the Chief Prosecutor, Brig. Gen. Mark Martins.  Congress’s work, he says, complies fully with the equal process component of the Due Process Clause (assuming without deciding, of course, that the latter indeed applies to the five accused in the first place).  Immediately Judge Pohl inquires not merely about the liberty interest, but also about structural limitations; the Chief Prosecutor’s view is that the court need not address any of the detainees’ individual rights (such as they are) in order to resolve AE106.  That said, a long line of undoubted cases have approved legislative classifications which treated aliens less favorably than citizens.  Martins lists some.  Take, for example, the Dugan case, which dealt with FISA’s rules for the surveillance of aliens.  (This jogs Martins’s memory about Hamdan’s effect on recent appellate rulings: the equal protection component of the CMCR’s analysis in that case was not overruled by the D.C. Circuit and thus remains good---though for the accused here, bad---law.)

It is entirely rational to discriminate against aliens as a class, Martins goes on, given their lesser contacts with the United States, relative to citizens. Even more so with respect to those who commit monstrous crimes abroad, during hostilities.  And that’s all that is required, by the way: rationality and a legitimate governmental end.  Thomas’s strict-scrutiny precedents, by contrast, concern not federal national security decisions but discriminatory policies imposed by individual states.  The Chief Prosecutor also refers to the narrowness of the MCA’s jurisdiction: the accused have to “opt in,” so to speak, to commission jurisdiction, in that mere alienage will not trigger war court charges.  An alien accused also must commit covered war crimes, in armed conflict.  And, Martins winds up, Congress surely can decide that if a defendant fits that narrow fact pattern, he warrants trial in a different regime than the civilian one.

Thomas begins where Martins left off---with due process and equal protection.  He submits that Supreme Court decisions in Yick Wo, Wong Wing and other cases cannot be distinguished here, and that they underscore the unlawful discrimination inherent in the MCA.  And for Thomas, no watered-down protections, whether described as “robust” (as Martins did) or not, will suffice.  Only application of all  the constitutionally-required protections will do that.  Thomas’s last word is about the proper legal standard for Judge Pohl to apply: we’re doing strict things here, not rational basis things, your honor.

Nevin bristles at Martins’s “opt in” remark.  He’s heard similar ones previously, and believes them to derogate from the presumption of innocence.  It reminds him of the disreputable and not-so-due-process-y “float” test, which was applied to suspected witches up in Salem, Massachusetts.  No defendant would say he’s “opted in,” counsel, says the court.  The question is whether personal jurisdiction is appropriate, right?  The lawyer’s point is made, so he sits quickly after the court inquires.  Bormann then stands.  No court has blessed a distinction like that wrought by the MCA, she argues; its unique, and entirely unlawful.

Surreply from Martins: the commission, argues the Chief Prosecutor, must decide personal jurisdiction.  That’s a judicially determination based on evidence, so there’s obviously no erosion of the innocence presumption in play.  As to Bormann, Martins cites her and the court to Eisentrager---which ringingly affirmed the legitimacy of the alien-citizen distinction.

AE106 is under advisement; we’ll move next to AE104.

Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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