Tuesday, February 20, 2007

DC Circuit: Military Commissions Act Constitutional

Here's the story.

As I've written before, this is the right decision. I hope the Supreme Court agrees.

It also gives me the opportunity to respond to something Professor Epstein said two weeks ago opposed to the MCA - that a military tribunal is unconstitutional because the ajudicator is part of the executive branch. If that were true, then every single court-martial and non-judicial punishment ever imposed by the military in the past 220 years or so has been unconstitutional. And that's just absurd.


Juvenal said...

Why does the fact that a particular practice has been engaged in for 220 years automatically make an argument that that practice is unconstitutional, "just absurd"? I'm interested in your reasons (constitutional) for dismissing Epstein's argument as absurd beyond just the fact that "its always been done this way"

How vital do you think the MCA is to the war effort? Seems like it might be overreaching unnecessarily (even if entirely constitutional) ...

Cato said...


These courts martial etc. that you're talking about--do they ever apply to citizens who aren't members of the armed forces? That seems like a pretty crucial distinction, right?

Orrin Johnson said...

Epstein's logic was that due process cannot be achieved without a judicial body independent of the executive. Courts-martial don't meet this test, whether the accused are citizens are not. They do meet the Matthews v. Eldridge test, though, as does (it seems to me) the MCA.

Courts-martials and NJP have existed in militaries for centuries. They have survived the onset of liberal democracy because of the recognition that military justice (both for our own offenders and for enemy combatants) must exist in a harsher environment than what we expect in the civilian realm. They are vital to the successful prosecution of war, and to a well disciplined military in general. You could write volumes on their importance, but space and time prevent that here. Suffice it to say that they are a tried and true method of balancing due process with military need, and no serious legal thinker (including, I think, Professor Epstein) would argue seriously that they are unconstitutionally lacking in their protections of the accused. Hence my declaration of absurdity.

I consider the MDA vital, because granting combatants who wilfully defy all conventions of war by targeting and hiding behind civilians, refusing to wear uniforms, etc. MORE legal rights than a POW who "plays by the rules" only incentivizes Jihadists to continue their abhorent tactics. It also encourages them to use our legal system to criple our offensive efforts, just as we would have been crippled in WWII had we allowed every German, Japanese, and Italian to file writs of habeas corpus.

Juvenal said...

Orrin, the long and storied history of courts martial that you cite is impressive, but is hardly germane. The constitution may tacitly permit courts martial as some inherent prerogative of sovreignty, but courts martial at the time of the framing of the constitution did not try civilians did they? I don't think anyone made the argument that all courts martial were unconstitutional; rather these "courts martial" specifically authorized by the MCA, by allowing the executive to imprison citizen civilians indefinitely, based on a quasi-judicial proceeding run entirely by the executive, did n't satisfy the requirements of due process. You may disagree with this argument, but its not a frivolous or absurd argument ...

As for the necessity of the MCA -- You've outlined an example of the unspeakable horrors that would immediately be unleased by continuing to accord citizen civilians the rights they've enjoyed for 220 years. There's no evidence that any terrorism deterring activities engaged in by the Federal Government would in any way be compromised if enemy combatants who are also citizens were afforded access to an Article III tribunal (I realize that this case itself does not involve a citizen enemy combatant, but I'm confining myself to that particular example, because it strikes me as being particularly egregious aspect of the MCA; although there is not a great deal of evidence that our security would be seriously compromised even if we did afford non-citizen enemy combatants incarcerated on US territory access to the courts). All we have is the assurance of the executive. Trust us, says the executive branch. The founder's did n't, and neither should we. The government always has great reasons for wanting to take away our liberties, and they should always be viewed with skepticism. You point to a horrific example of what might happen if we allow these detainees access to the courts; the flip side of the coin is the equally horrific prospect of a rabid President Hilary Clinton classifying all journalists who criticize her plan for nationalized health care as "enemy combatants" and shipping them off to the dungeons without access to the courts.

PubliusRex said...

Juvenal -

If the original meaning of the constitution means anything at all, then the common usages and practices of those who ratified it seem not only germane to the issue of constitutionality, but the most important fact to consider if there's any ambiguity in the language at all.

Of course, if the plain language of the constitution forbade something, whether its "the way it always was" matters not at all.

To pick up on your question about whether this sort of thing has been done before vis-a-vis civilians, John Wilkes Booth's conspirators, most if not all of whom were American citizens captured within the United States, were tried before a military tribunal and punished by military authorities. This was just three years before the raftification of the 14th Amendment. I'm guessing at the time of the framing, this sort of thing was just as common - but I can't cite an example off the top of my head.

Juvenal said...

Publius -- could n't agree with you more about long historical practice and plain language and what not.

My point is that long historical practice does not necessarily make a practice automatically constitutional (e.g. INS v. Chadha); and the long historical practice that Orin cited was not even germane because the courts martial he cited never tried civilians; these do.

The Booth example is an interesting one. Not sure that it is defensible constitutionally, and much that Lincoln did (and what was done during reconstruction) was not defensible constitutionally. If Booth's conspirators were captured in the South, then it seems natural that they would have been tried in a court martial because the South was under military occupation at that time (i think McCardle of Ex Parte McCardle was also tried for sedition, disturbing the peace etc by a court martial, because of the military occupation)

Orrin Johnson said...

You're misconstruing two things - the relevance of my example of the court martial, and the facts of the MCA.

First, my example of the court martial is to demonstrate the flawed logic that flows from Epstein's argument - that any tribunal run by the military is per se inadequate because it provides no interbranch review process. I think is is frankly absurd to assert that courts-martial are unconstitutional, and therefore, so is saying any other military tribunal is unconstitutional SOLELY because there is no Article III review. That was my only point in the above post, not that opposition to the MCA is absurd. While I think the MCA is both vital and constitutional, certainly very good arguments can and are being made to the contrary.

Secondly, I think you're overstating the actual affect of the MCA on citizens. The statutory bar before one can be declared a UEC is high, and citizens are entitled to challenge that evidence with a habeas writ. If President Hillary (shudder) puts me in jail for my blogging, she must provide evidence that I have provided MATERIAL support to the enemies of this country, evidence which must withstand independent judicial review.

As much as distrust Hillary, I'm OK with her having the MCA in her arsenal. In fact, I insist on it.

There are no easy solutions. One of the great dangers of this war is that the enemy understands our legal system, knows where the chinks are, and is highly adept at using it to undermine us. Indeed - they see our civil rights protections as weaknesses to exploit. I'm not saying the MCA is perfect or even desireable, but I think it's the best of a lot of bad options for balancing the joint threats of islamic terrorism and government overreach.

The bottom line is that while I don't like having to simply trust the feds, in war, that's what we're stuck with. We don't allow judicial review of troop movements, and we don't (or shouldn't) allow strategy by committee in Congress. That's why we have regular elections and executive term limits.

An imperfect answer in an imperfect world.

PubliusRex said...

At least some were captured in Maryland, which I don't think would have been regarded as under military occupation, if that term has any legal meaning whatever.

And I agree with your point in the main...history does "not necessarily" define constitutionality, but in many contexts, it is highly material and probative.

And to the point about Lincoln, notwithstanding that he was dead during the tribunal investigating his death, that he may have committed other unconstitutional acts (a debatable premise) is TOTALLY irrelevant to the issue of whether the Booth trial was unconstitutional.

Juvenal said...

Publius, that's precisely the point I was trying to make. Plenty of unconstitutional things were done during Lincoln's presidency and its immediate aftermath -- therefore that fact that the Booth tribunal involved a court martial of civilians is of ABSOLUTELY NO RELEVANCE in deciding whether courts martial that allow civilian citizens to be deprived of their liberty are constitutional.

And yes, I was dimly aware of the possibility of Lincoln not being an active participant in the proceedings investigating his assassination, but it is awfully kind of you to point that out.

PubliusRex said...

I agreed with your point that history is not always dispositive, not that Lincoln presided over rife unconstitutionality.

The Booth tribunal and the lack of furor over it is a piece of historical evidence that military tribunals for civilians were certainly not widely regarded as unconstitutional at the time of ratification.

You said: "but courts martial at the time of the framing of the constitution did not try civilians did they?" This begins to answer your rhetorical challenge. Granted, this was some 70 years later...but the corpses of many of the founders were much fresher then than they are today.

Juvenal said...

So if I am to understand you correctly, the founders would have been perfectly happy with a civilian citizen being arrested by the executive, "tried" by the executive, and then incarcerated by the executive without an iota of a glimmer of a hint of a scintilla of a whiff of the involvement of the judiciary?

That's a novel and interesting proposition, and when you find something to back that up other than the fact that in the immediate aftermath of the civil war (when much of the country was directly ruled by generals of the US Army) the co-conspirators to the assassination of the President were tried by a court martial without much opposition (to your knowledge), then I'll be happy to revise my shockingly hidebound view that the Constitution places restrictions on the ability of the Executive to throw people into jail as and when he pleases, as long as a division of his own branch of government rubber stamps it in some kind of pseudo-judicial proceeding

PubliusRex said...

Allow me to interrupt your propping up of straw men to remind you that I did not say that "the founders would have been perfectly happy with a civilian citizen being arrested by the executive, 'tried' by the executive, and then incarcerated by the executive without an iota of a glimmer of a hint of a scintilla of a whiff of the involvement of the judiciary..."

You suggested it (military tribunals on civilians) had never happened - I gave you and example. I'll see what I can do to find an example from the War of 1812 or perhaps the revolution.

Something tells me that even that will not satisfy you; i.e. you don't care whether military tribunals were "constitutional" at the time of ratification. Perhaps you think this should be governed by an "evolving standards of decency" standard.

Juvenal said...

You may not have said it in those words, but that appears to be the import of what you've been arguing, is it not? If not, do please tell me what your position is.

Also, I search through my arguments in this thread in vain for an "evolving standards" type argument. My argument is not even that these commissions are obviously unconstitutional. My argument is that these are NOT obviously constitutional (as Orrin's post says they are). Evidence that these sorts of tribunals existed at the time of the framing of the Constitution, and were approved of by the framers would of course lend support to the argument that they are constitutional. Evidence that this sort of tribunal was used on one occasion, during a time of war on U.S. soil, a full 80 years after the ratification of the Constitution emphatically does NOT.

You obviously pride yourself on the purity of your "originalist" approach to Constitutional interpretation. Your tortured co-opting of originalism in this situation may be even less principled than the "evolving" standards approach you sneer at -- you seem to be arguing that practices that were in effect during the Civil War are, taken by themselves, strong evidence of the intent of the framers of the constitution. Or is that another straw man?

Also, to make it clear who is making an originalist argument in this instance, let me quote my comment: "The constitution may tacitly permit courts martial as some inherent prerogative of sovreignty, but courts martial at the time of the framing of the constitution did not try civilians did they?"

Orrin Johnson said...

"We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death."

Ex Parte Quirin, 317 U.S. 1 (1942) (Emphasis added)

I don't know how much of that is still good law statutorily (probably not much), but the Constitutional arguments and deep historical analysis of American military tribunals remain untouched. Quirin was the case of the German sabateurs who came ashore in NY and FL via submarine and burried their uniforms. At least one was an American citizen. None of them were granted habeas. 6 were executed (the other two cooperated, and were released).

This case is essential reading to further an intelligent discussion along the lines this one has developed.

To clarify my position: I actually didn't say the MCA was "obviously" constitutional. (I happen to think it is constitutional, but it's admittedly a close argument either way.)

I'm saying it's "obviously" NOT UNconstitutional solely for the reason Epstein profered, i.e. that the tribunal is purely executive in nature, and that fact alone makes it violative of due process. As an example of a purely executive tribunal I figured ALL would consider obviously constitutional, I pointed to the Court Martial.

Juvenal, I think you're still overconflating the MCA (to march forward a few centuries). It's not as if Bush, Hillary, or whomever else could point to a man on the street, say, "Bring him to me!" and direct him to the Bastille. An accused UEC is captured on the battlefield or rounded up in a raid of some kind. The soldiers in the field, led by a commissioned officer, file a whole ton of paperwork, and the person goes to a hearing before a much more senior military officer. If a finding is made, the person has the right to an appeal to yet another senior military officers. If the UEC is a citizen, he can file a habeas writ on top of that, where an Article III judge will once again review the evidence to ensure it is sufficient to prove material support of the enemy.

(All of this is, I might add, far more than they would receive had they massed on the border in uniforms and waving scimitars and AK-47s like civilized barbarians. Because the laws of war exist to discourage fighters from fighting asymetrically and sans uniform, it seems odd we should insist on encouraging the al Qaeda status quo by treating them to far MORE rights than conventional POWs.)

Do I trust all military officers? No. But I do trust the vast majority of them, and feel comfortable that (a) they will not be acting under the direct orders of the Prez to "throw" the proceeding just to toss people in the brig (and if they were, they wouldn't do it), (b) they will give the accused a fair hearing, and (c) failing to give a more than fair hearing would be far more dangerous to their careers than failing to railroad innocent political prisoners.

Juvenal, if a spy were captured by Washington's new army in 1776, he would not have been given a lawyer or a trial, a citizen of any of the United States though he may be. If he got any process at all, it would have been a military tribunal. The same was true of Mexican guerillas in 1849. Same with Rebels and Copperheads in the early 1860s. And as late as 1942, habeas was denied to German sabateurs (at least one of them an American citizen) because they violated the laws of war by not wearing uniforms.

Considering the tactics of the enemy and the stakes involved, I think this is a fair, constitutional, and indeed, vital compromise.

Here's some interesting background (admittedly dated, but as far as i can tell, the general principles remain in tact.) Here's a VERY breif background history of American Military Tribunals from the same source, former White House Counsel and Watergate whistleblower John Dean (hardly a friend to the Bush Administration).

SirWhoopass said...

In Quirin there was a state of war, declared by Congress, against a foreign state. The accused all lived there at the time of the declaration of war. They received money, training, and transportation from that state. I would be cautious about drawing parallels between that case and the situation today.

Both the Secretary of the Navy (Gideon Welles) and Lincoln's Attorney General (Edward Bates) protested the use of a military commission to try the Booth conspirators.

The Secretary of War favored the military commission, as it was his stated goal to try and execute the conspirators before Lincoln was buried. Johnson directed his AG to prepare an opinion backing the use of military commissions. This opinion noted that Washington DC was under martial law at the time of the assassination.

Orrin Johnson said...

It doesn't really matter - for constitutional purposes, the Congressional resolutions authorizing the Iraq and GWOT conflicts amount to a declaration of war. And in WWII, the Constitution was not suspended in any way with regard to US citizens. The court took pains to note that the defendant's citizenship did not preclude the tribunal, even if the result was death. If the narrow question is whether any military tribunal involving a US citizen can be Constitutional (and that is the question originally presented), then the current "state of war" is legally sufficient. (Even Epstein acknowledged that.) Indeed, the laws of nations (and thus of war) referred to in the Constitution and in Quirin do not go away even in peacetime.

SirWhoopass said...

But a declaration of war against whom? The affiliation with Germany was not in dispute in Quirin. The executive has not shown particular competence in determining who is and is not a part of the GWOT. There is where I am uncomfortable with the current situation.

Nonetheless, I do not dispute the singular point that a citizen can be tried by a military commission. Nor do I argue that any judicial system entirely within the executive is automatically unconstitutional. I think we are in agreement on the fundamental principles.

Orrin Johnson said...

You're right - of only our enemy would affiliate and wear uniforms, it would be much simpler. They know our due process "squeamishness," and are expertly using it against us. Scary as hell.

There are no totally comfortable solutions here, none totally fair, or that won't on occasion erroneously impact innocents. It's a question of the least imperfect solution. I think we all agree on that.

SirWhoopass said...

Of course there are no perfect solutions. I think it bears mentioning that the choice here isn't about letting terrorists go free. Even if it is a civilian court, the bad guys still go to court. And jail.

I'd rather err on the side of having a few terrorists get appeals and public defenders than to send people that deserve due process to military tribunals.