Brig. Gen. Mark Martins on Historical Perspectives on Military Commissions

Remarks of Brigadier General Mark Martins, Chief Prosecutor of Military Commissions

Annual Meeting of the American Bar Association’s Judicial Division

Chicago, 4 August 2012

 Panel on “The Renewed Trials by Military Commission Under the Obama Administration: An Historical Perspective”

Thank you General Altenburg, and thanks to my panel colleagues for their thoughtful historical perspectives thus far.  As a soldier, here in the Land of Lincoln, on a panel devoted to historical perspectives, and at a time when so many are paying close attention to events in London, England, I am reminded of President Lincoln’s favorite story about the British.  It relates to a period when they weren’t feeling quite so welcoming toward at least one foreign guest as they are today during the tremendous Olympic Games they are hosting.  As Lincoln told it, Revolutionary War soldier Ethan Allen visited England in the years following the war, and his hosts set out to embarrass Allen a little bit, so they placed a large portrait of George Washington in the only outhouse in the area, where Allen would have to encounter it.  When Allen emerged from the loo not upset at all, they asked him whether he’d noticed anything, and he replied “well, if you mean the portrait, I thought it was well-placed.  Nothing will make an Englishman evacuate faster than the sight of General George Washington.”  Actually, as Doris Kearns Goodwin notes, Lincoln didn’t use the word “evacuate.”  I will have more to say with regard to President Lincoln, and his involvement with military commissions, in a few minutes.

So that we can move soon to the question and answer part of the program, let me just make three points.

First, despite the professional and honorable roles served by the assigned lawyers—those roles exemplified by each of the good men here on the dais and by several of the men and women I see in the audience—the systems of military commissions attempted in 2001 by presidential military order and in 2006 by initial legislation were flawed.  The reforms subsequently incorporated into the 2009 Military Commissions Act have resulted from action by all three coordinate branches of our government.  While appreciating various criticisms and concerns and urging continued transparency, I believe that the reformed military commissions are fair and that they serve an important part in the armed conflict against al Qaeda and associated forces.  These violent groups no doubt can be analogized to other threats posed to law and order by criminal groups throughout recent history.  But our government has nevertheless now repeatedly affirmed that we are also in a genuine lawful state of armed conflict against a weakened but still adaptive non-state organization—a threat that sees itself as waging a protracted war, that knows how to employ widespread new technologies, that strikes from sanctuaries protected by international boundaries and large swaths of ungoverned terrain, and that remains committed to attacking civilian populations while concealing itself among them.  Reformed military commissions can assist in protecting innocent peoples against al Qaeda and associated forces by occupying a narrow jurisdiction and a specialized practice within our national security and justice institutions.  But it must be a jurisdiction and practice that complement rather than displace the larger jurisdiction and practice of our federal civilian law enforcement agencies and our very capable federal civilian courts.   And the process as a whole must do justice in order to earn legitimacy.

Briefly, the major 2009 reforms were (a) that statements obtained as a result of cruel, inhuman, or degrading treatment are not admissible, and the standard for admissibility of a statement made by the accused is voluntariness; (b) that any lawfully obtained, voluntarily made, probative, and reliable hearsay statement that may be admitted by a military judge in the interests of justice must be established by the party offering the statement to be so; (c) that the accused’s access to witnesses and evidence must be comparable to that enjoyed by an accused in a federal civilian criminal prosecution; and (d) that the classified information procedures used in military commissions are now the same as those used in federal civilian courts.

Second, the major criticisms of military commissions increasingly seem stuck on replay back in 2005, and it is as if some who are now offering the criticisms don’t want to acknowledge the very broad-based and legitimating reforms that their own efforts helped bring about.  That is, some want to continue to attack the Article II, executive branch military commissions convened under the 2001 presidential order, which generated a large and impressive response from the legal bar and academy.  That response—in which several divisions and many members of this esteemed bar association actively participated—was both practical and intellectual.  I respectfully submit that that response prevailed.  But a by-product of that success is that the old criticisms can’t just be rehashed. Continued pursuit of the fairest and most accountable judicial proceedings attainable demands more from us than that.

Most of the criticisms can be catalogued under five “Uns”—that military commissions are unfair, unsettled, unknown, unbounded, and unnecessary.  Yet reformed commissions require all of the protections of fairness that are required by our values.  They apply a well-defined and comprehensive body of law and rules from our respected courts-martial and federal courts and, like all judicial bodies, raise unresolved issues in a methodical way for reasoned and thoughtful resolution.  The public and media now observe them both in person and by closed circuit transmission to sites in the United States, and any closure of proceedings must meet the same strict criteria demanded in federal civilian criminal trials.  The jurisdiction is well-bounded and narrow, applicable only in the context of genuine hostilities, involving non-citizen unprivileged belligerents, and alleging offenses that are longstanding violations of the laws of war.  And military commissions are needed, because while most crimes and precursor acts of international terrorism can and should be prosecuted in civilian courts, there is a narrow category of cases in which two different administrations and Congress acting five times with guidance from the courts have recognized military commissions must be the forum used.  In short the five “Uns,” though helpful reminders that we must remain ever vigilant, are themselves now unfounded, and resistance to moving forward fairly and transparently is now unwise.  The statutory constraints that make military commissions the only option in certain circumstances are real.  They need not cause the system to be any of the five “Uns”; rather, they exhort us to ensure that it is laudable and respected.  This has become a matter of the rule of law and of recognizing that at some point justice delayed really is justice denied.

Which brings me to my third point.  There is yet another “Un” that is occasionally suggested as a criticism: military commissions are ultimately un-American or foreign to our better traditions.  To illustrate just how inaccurate and ahistorical that view is, I return to President Lincoln.  Some of you may know that Lincoln agonized over the military commission conviction of John Yates Beall in February of 1865.  Beall, a onetime confederate officer, had been found guilty of violations of the law of war for attempting to derail a train carrying civilians in upstate New York, where Beall and fellow guerrillas were operating while disguised as civilians.  Beall’s trial was conducted by military court while the civilian courts of New York had remained open.  Lincoln had just completed, on January 31st, 1865, the exhausting but ultimately successful sponsorship of the Thirteenth Amendment in the House of Representatives; the House had voted out the Amendment to abolish slavery and make permanent and universal the prohibition that Lincoln had only temporarily and partially emplaced using his war powers with the Emancipation Proclamation.  Lincoln was soon, in early March of 1865, to give his Second Inaugural Address, one of the more profound statements of the principle that right cannot ever be reduced merely to might.  These are hallowed months in the annals of democracy in the United States.  And in the midst of this period, Abraham Lincoln considered one of his most significant duties to be the consideration of Beall’s military commission.

In short, Lincoln approved the commission’s findings and sentence.  His well-established record was that of a chief executive very willing to second-guess military courts—scholars note that he disapproved or granted substantial clemency on a full third of the cases that came to him for final action.  And we all know that he was a fair constitutional lawyer.  The record of Beall’s military commission also shows that the proceeding was sharply adversarial, that Beall was well-represented, and that following Beall’s conviction Lincoln received many pleas for clemency from Beall’s family and friends.  That Lincoln approved Beall’s military commission trial in February of 1865 by no means settles the question of how to assess renewed military commissions in the 21st century.  It doesn’t even settle the question of how to assess Lincoln’s own sometimes controversial record regarding civil liberties during the civil war.  But it does undercut the claim that commissions are foreign to our nation’s history and traditions of justice, and it helps put into perspective why any president should be wary of eliminating from the range of forum options an institution that dates back even before Lincoln, to George Washington, the other American I mentioned at the outset. And with that, I’ll return the microphone to our moderator so that we can begin receiving questions from the audience.  Thank you.