- The Washington Times - Tuesday, July 11, 2006

Part two in a four-part series of essays.

In recently striking down military commissions, the Supreme Court has given Congress a golden opportunity to resolve once and for all how enemies captured in the war on terror should be processed. Despite the various claims made about the breadth of the Hamdan v. Rumsfeld decision, the court ruled narrowly that the current military commissions failed to comply with a statutory requirement mandating — absent a showing of impracticability — that their rules and procedures must be the same as those in regular courts martial. In fact, there are compelling practical and principled reasons for not running the courts martial and military commissions in the same manner, and Congress should amend the law accordingly.

Courts martial are bodies before which American service members, and other “lawful combatants” entitled to prisoner of war status under the Geneva Conventions, are tried for transgressions against the laws of war and military regulations. Lawful combatants, even those accused of the most serious misconduct on an individual basis, comply with the basic requirements of the laws of war as a whole. Most importantly, they distinguish themselves from the civilian population by wearing uniforms and carrying their arms openly. They do not target civilians for attack, and, indeed, conduct their operations in ways designed to minimize injury to civilians and civilian property. These measures put lawful combatants at greater risk of injury or death, and make accomplishing their missions more difficult. However, compliance with these basic rules also alleviates much wartime suffering; these rules were developed over centuries with that fundamental goal in mind.

By contrast, unlawful combatants, like members of al Qaeda and the Taliban, do not distinguish themselves from surrounding civilians. Indeed, they purposefully use the civilian population as cover for their operations and — when it suits their purposes — deliberately target civilians for attack. Unlawful combatants throughout the ages have been considered the enemies of humanity. Such is the danger posed by unlawful combatants to civil society, and so compelling is the need to deter this behavior, that simply taking up arms with an entity like al Qaeda — regardless of an individual’s actual contribution to the group’s efforts — has traditionally been considered a grave offense.

Accordingly, unlawful combatants have not earned treatment identical or substantially similar to that accorded to lawful combatants, and it should not be given to them gratis. To do so would only allow al Qaeda to benefit from its own illegal conduct, and it would also serve to legitimize its despicable methods of “asymmetric” warfare. Congress can and should make this clear by itself establishing military commissions to try captured unlawful combatants, and by specifying that these bodies need not follow the same rules as regular courts martial.

Military commissions must, of course, meet certain minimal standards of fairness — but these standards require very much less than the protections to which defendants are entitled in courts martial, or in the civilian judicial system. Based on longstanding customary law, and especially the practices in Allied military commissions following World War II, the accused must be given notice of the charges, a hearing before an impartial panel, and a fair opportunity to make a defense. Overall, the military commission procedures the Pentagon has painstakingly crafted since September 11 more than meet this minimum and would be an excellent starting point for Congress.

In fact, there are only two fundamental concerns regarding these rules, raised among others by the justices in Hamdan, that must be addressed. First, as a matter of fundamental fairness, the rules should not be subject to change once an individual’s trial process begins. Second, limitations on the “right of confrontation” of the accused — the ability to know who are the witnesses against him and to assist his lawyers in answering their claims — must be spelled out by Congress in detail and kept to a minimum.

This, by far, will be the most difficult legislative task. The Constitution’s broad guarantee permitting civilians to confront their accusers has always been subject to some limitation in the military justice system, where considerations of security and military necessity must also be balanced. Under the current military commission rules, however, the accused can be excluded as the judges see fit. Congress should articulate more concrete standards here, making clear for future Supreme Court consideration how it has balanced the competing equities.

Similarly, Congress should define in detail the offenses triable by military commission. In Hamdan, four Justices concluded that “conspiracy” was a charge that could not be tried by military commission under current law, but this can be remedied by Congress using its constitutional authority to “define and punish … offenses against the Law of Nations.”

At the same time, Congress should make clear that, consistent with the customary laws of war, merely taking up arms as an unlawful combatant is an independent criminal offense — regardless of when Congress may itself have authorized military action. Members of al Qaeda can, and should, be prosecuted and punished for associating themselves with that group and its “jihad.” They had no right to take up arms against the United States, before or after September 11, 2001.

Part I

Part III

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C. office of Baker & Hostetler LLP and served in the U.S. Justice Department under Presidents Reagan and George H.W. Bush. They dedicate this series of essays to the beloved memory of Perseus Rivkin.


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