Bush’s Brave New World of Torture

After President George W. Bush signed the controversial Military Commissions Act last week, the Justice Department wasted no time in using its new power to deny due process to the detainees swept up in the “war on terror.” Now that the bill which Sen. Patrick Leahy called “un-American” has become law, countless hours and dollars will be spent by public interest law organizations trying to undo its damage. In addition to challenges of the provisions that strip habeas corpus rights, we can expect constitutional challenges to the military commission procedures and amendments to the War Crimes Act.

The MCA is an unprecedented power grab by the executive branch. Among the Act’s worst features, it authorizes the president to detain, without charges, anyone whom he deems an unlawful enemy combatant. This includes U.S. citizens. It eliminates habeas corpus review for aliens. It also makes providing “material support” to terrorists punishable by military commission. And the military commissions' procedures allow for coerced testimony, the use of “sanitized classified information” -- where the source is not disclosed -- and trial for offenses not historically subject to trial by military commissions. (Terrorism is not historically a military offense; it's a crime.) Finally, by amending the War Crimes Act, it allows the president to authorize interrogation techniques that may nonetheless violate the Geneva Conventions and provides future and retroactive “defenses” for those who engage in or authorize those acts.

According to former Justice Department attorneyMarty Lederman, who opposed the Act, “the primary impact of the Military Commissions Act is” not to establish military commissions, but “to attempt to eliminate any judicial checks on the Executive's conduct of the conflict against al-Qaida.” Conservative law professor John Yoo, a supporter of the Act, writes, “In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.”

As Yoo himself admits, “The new law is, above all, a stinging rebuke to the Supreme Court.” Several Supreme Court decisions in the last two years struck down Rumsfeld’s previous military commissions and combatant status review tribunals, and granted Guantanamo alien detainees and citizens held in military custody in the U.S. the right to challenge their detentions via habeas corpus petitions in U.S. courts. The Bush administration argued against these positions (and indeed, the administration’s belief that Guantanamo was not subject to U.S. court jurisdiction was the main reason it chose that as its detention site).

Congress has now, in effect, struck down these Supreme Court decisions that struck down previous executive decisions and actions. What next?

Habeas For Some, Not All

The first challenges to the numerous provisions in the MCA will undoubtedly be about the habeas corpus-stripping provisions. Habeas corpus is the right to have a court determine the legality of one’s imprisonment before trial. The U.S. Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”

Advocates of the MCA claim that habeas has never applied to foreign combatants captured on the battlefield. This claim begs the question: In the “war on terror,” how do you know where the battlefield is and how do you know who foreign combatants are? Habeas exists exactly for the purpose of challenging wrongful detentions and in the “war on terror,” it has already become abundantly clear that as many as 95 percent of the detentions may be wrongful.

The MCA contains two provisions that strip detainees of their right to habeas corpus. One provides that:

… no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006… including challenges to the lawfulness of procedures of military commissions…

The second provision, amending thehabeasstatute, adds the following:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

It would be surprising if these provisions were not immediately challenged. And those best situated to challenge them are, of course, those who stand to lose the most: the detainees who have already filed habeas corpus petitions.

The Justice Department has already asked the D.C. Circuit Court to dismiss 196 of these cases without any determination about the merits of the claims or the guilt or innocence of the petitioners. These cases involve people who have already spent several years in detention without any charges while their habeas petitions work their way through the courts.

In essence, the habeas-stripping law throws every alien detainee back to legal minus zero. In other words, such detainees cannot challenge their detentions; they must first challenge the law that disallows them from challenging the detentions. These detainees are not back to where they started; they are back to before where they started.

What will happen is this: after the government moves to dismiss the cases and the petitioners argue against dismissal (the D.C. Circuit Court has already ordered supplemental briefing in two packets of cases on the issue), the D.C. Circuit will either agree it no longer has jurisdiction (because the MCA stripped it) or it will rule that the MCA habeas-stripping provision is unconstitutional and the Constitution allows (or even requires) them to consider the petitioners’ claims. If the Circuit court rules in favor of the government, the petitioners will appeal; if the court rules in favor of the petitioners, the government will appeal. Either way, these cases will undoubtedly be consolidated and appealed to the Supreme Court.

Meantime, of course, the detainees remain in detention. Remember, detention centers are not hotels. Consistent abuse, humiliation, beatings, and even torture have been documented at these places. Further, recall that there is credible evidence that a great number of these detainees are not terrorists.

Secret Evidence, Hearsay And Coercion, Oh My

Other challenges will be about military commission procedures and rules of evidence that have generated controversy because they violate traditional norms of fair trial and due process. The Act permits the admission of hearsay -- a general no-no in federal courts, and for good reason, since any witness can simply make up what someone else says and the accused has no way to challenge its validity. Appeals on hearsay would likely be joined with other evidentiary, procedural, and substantive matters, although it is unlikely that hearsay appeals alone would be successful, since the D.C. Circuit Court will probably be deferential to the military commission findings.

Another MCA provision likely to be challenged will almost certainly be the section that allows the use of secret evidence where “disclosure would be detrimental to the national security.” Challenges to the use of secret evidence were made in the immigration context long before 9/11. The practice of using secret evidence showed such troubling results that in 1999, Congress nearly passed the Secret Evidence Repeal Act (SERA) “to ensure that no alien is removed, denied a benefit under the Immigration and Nationality Act, or otherwise deprived of liberty, based on evidence that is kept secret from the alien.”

In the context of military commissions, where detainees can be sentenced to death, the concern over the use of secret evidence is magnified, and the practice will undoubtedly be challenged at some point by detainees. However, despite these concerns, courts -- including the conservative D.C. Circuit Court -- have shown a reluctance to second-guess government assertions of the need for secrecy. Thus, it is unlikely that any appeals will be won on this basis alone.

Another troubling provision allows coerced testimony to be admitted into evidence where the military panel decides it is “reliable and possessing sufficient probative value” and “the interests of justice would best be served by admission of the statement into evidence.” This clause appears to promote the use of coercion. What it means is that if either the detainee or a witness against him makes statements under coercion (which by some definitions might include torture) -- normally inadmissible in court -- his admissions can be used against the detainee. How a commission judge could determine the reliability of such testimony or what standard he would use to determine what is “in the interests of justice” are troubling uncertainties. Detainees will almost certainly argue that this provision is unconstitutional, but again challenges on this basis may fall on deaf ears.

Another traditional feature of due process in American courts that the Act removes is the accused’s right to “discovery” -- or to carry out his or her own investigation. Under the MCA, while the accused is permitted to present evidence in his defense, may cross-examine witnesses, and “shall receive the assistance of counsel” (or may represent himself), he has no right “to conduct his own investigation into the facts using the process of the court.” This is also likely to be challenged by detainees.

It is worth remarking that all these provisions will likely be challenged as being in violation of the Supreme Court’s 2006 ruling in Hamdan v. Rumsfeld, which overturned the administration’s previous military commissions, noting that the Code of Military Justice could satisfy due process requirements.

Detainees will also likely challenge the provisions that strip them of the right to claim any protections under the Geneva Conventions. Loyola Law School professor David Glazier notes that: “For several reasons, [the Geneva Conventions] form a logical starting point for any effort to identify potential procedural constraints on the conduct of trials under the law of war.”

But, again, federal courts have not widely favored application of Geneva as the basis for individual rights, despite Geneva’s requirement that it’s protections be incorporated into the laws of countries who adopted it.

Finally, the MCA helps to shield U.S. personnel from being held responsible for abuses committed during detentions or interrogations. This is widely considered to be the Bush administration’s primary motive in pushing this legislation: To keep Bush administration officials and others from being held accountable for war crimes or other grave violations of the laws of war.

While it does not grant absolute immunity, because it provides for defenses against conviction, the MCA makes it very difficult for a detainee to bring any lawsuit against U.S. personnel or officials for war and other selected crimes committed against him.

The MCA also modified the definitions of war crimes, including torture, narrowing the definitions in such a way as to permit certain forms of interrogation which may constitute torture under international law.

What’s the Upshot?

Since the MCA was passed in early October, legal scholars have pointed out its weaknesses. (See Jack M. Balkin, Marty Lederman and the Georgetown Law faculty blog.) It is a poorly drafted law, vague and overbroad to the extent that scholars cannot predict how courts will determine what some provisions mean.

But if courts are stripped from reviewing it at all, if a court may not review poorly drafted and internally contradictory laws, who will determine whether they are lawful or constitutional?

The commission procedures do not meet the requirements set forth by the Supreme Court, by the Military Code of Justice, or by due process. Given that these procedures apply only to detainees who have been designated for trial (not all detainees will necessarily be tried -- many may just be held indefinitely without any legal process), one must conclude that the MCA does not give detainees an adequate mechanism -- i.e., habeas corpus -- for challenging their detentions.

What kind of law provides imprisonment without the right of habeas or punishment without legitimate appeal? Without those standards, the law is just “victor’s justice” -- which is no justice at all. The Second World War is often understood to have come about at least in part as a result of the humiliation exacted upon Germans by the victors at the end of WWI. Victor’s justice breeds resentment. It breeds more war.