The Dehn-Wala Exchange on Military Commissions Continues

I enjoyed reading Raha Wala’s thoughtful response to my comments, and thank you for sharing it.  If you’ll indulge me, I would like to clarify some additional points.  Most importantly, these thoughts, like my previous comments, are my personal views and not those of the U.S. Army, U.S. Military Academy or any other agency of the federal government.  I am enjoying the full extent of the academic freedom I have. First.  I accept that Raha did not argue Article III courts would be the only lawful forum for these trials and believe he mischaracterized the gist of my comments.  While disclaiming their singular propriety, his discussion of “regularly constituted courts” and requisite judicial guarantees focused exclusively on the failure of military commissions to approximate the rules of procedure and evidence in Article III courts.  He began with the assertion that your Foreign Policy article “understate[d] the differences between [military commissions and Article III courts], and [gave] insufficient weight to the value of these differences.”  He concluded, “I could go on, but I think it’s fairly clear that we probably disagree on the degree to which military commissions provide the robust procedural safeguards of Article III, federal courts.”  Thus, I suggested, quite fairly I think, that he subtly conflated the rules of Article III courts with the judicial guarantees required by international law.  Others have compared the current commissions’ rules to relevant domestic and international tribunals and found that they compare quite favorably.  See, for example, http://www.heritage.org/Research/Projects/Enemy-Detention/Military-Commissions (hat tip to the Lawfare reader who referred me to this link in response to my prior comments). Second.  Raha’s unqualified claim that these are “extraordinary courts” --- if used in its normal sense --- fails to fully appreciate that military commissions with some procedural variations were sanctioned by Articles 21 and 36 of the Uniform Code of Military Justice (UCMJ) prior to the Military Commissions Acts of 2006 & 2009.  In Hamdan, the Court found only that President Bush’s military commissions order (MCO) failed to comply with Article 21, not that military commissions were inherently unlawful, extraordinary courts.  The Court held that the MCO’s departures from the rules and procedures applicable at courts-martial, departures which were generally authorized by Article 36(b) of the UCMJ, were not adequately justified (something it found to be implicitly required by that section).  According to the Court, this lack of justification meant that MCO commissions were not “regularly constituted” as required by Common Article 3 of the Geneva Conventions, and violated Article 21's requirement for compliance with applicable laws of war.  Arguably, then, if those departures had been properly justified and also provided requisite judicial guarantees (and I do not mean to suggest that they did), military commissions established pursuant to the MCO would have been “regularly constituted” under existing U.S. law.   Following this view, the MCA may simply clarify what was permissible under preexisting U.S. law rather than change it.  If so, its commissions are arguably regularly constituted.  (I am well aware of both international and domestic law based arguments against this position, which is why I twice emphasized “arguably.”) Third.  I do think the history and evolution of punishing law of war violations briefly summarized in my previous comments, including “the particular American experience with military commissions,” is entirely relevant to analyzing what customary international law currently permits.  One cannot accurately determine the current state of international (or even domestic) law on this point without a theoretical understanding of what it once was, and how it has evolved.  Again, in my view, a Paquete Habana-like analysis of state practice and opinio juris is needed.  I have also made clear in previous scholarship that U.S. military commissions and their “precedent” (discussed by Winthrop’s “Military Law and Precedent”) are U.S. practice and no more.  Those familiar with Paquete Habana know that it is a lengthy opinion analyzing the customs and usages of so-called “civilized” nations including, but not limited to, the U.S.  Fourth.  I am uncertain whether I agree that “U.S. courts are just as likely (or perhaps even more likely) to reference the jurisprudence of international tribunals as U.S. practice, in construing the requirements of the customary laws of war.” (emphasis added)  Even if true, I doubt the CMCR will find adequate decisions addressing the very specific points I earlier identified.  It must determine whether conduct made punishable by current military commissions (however labeled) is properly considered a punishable violation of international law.  If the crimes defined in the Rome Statute of the International Criminal Court are any indication, international tribunals have certainly not addressed the full measure of potentially punishable law of war violations.   (Note that even the Rome Statute is purportedly limited to "the most serious crimes of international concern" (Art. 1), leaving room for other punishable violations.) Finally, I note that Raha varies his terminology between “serious” violations of the laws of war and “universally recognized violations of the laws of war.”   Many universally recognized violations of the laws of war are not “serious,” or “international war crimes” as that term is commonly used.  Given that Raha earlier stated “[t]he most fundamental issue relates to the principle of legality…,” a point with which I agree, this is a distinction with a legal difference.  For example, killing by an unprivileged belligerent is “universally recognized” as lacking combatant immunity and subject to punishment under the domestic laws of a state.  It is not an “international war crime” because international law does not require punishment, but only permits it.   The true questions raised by such cases are: (1) whether a state other than the territorial state where such a killing occurs can prosecute and punish it; and (2) whether law of war military commissions may constitutionally perform that function in the U.S.  There is support in both international and domestic law for an answer of “yes” to both questions.  (I express no ultimate view on these important issues, at least for now.)