Annotations tag:jurist.org,2010-04-01:/annotations//8 2011-03-21T15:55:35Z Movable Type 5.01 Prosecutor v. Faustin Kayumba Nyamwasa et al, High Military Court of Rwanda: An Analysis of Jurisdiction, Substance of Applicable Law and Policy Issues of the case tag:jurist.org,2011:/annotations//8.34489 2011-02-17T01:07:30Z 2011-03-21T15:55:35Z Adrienne Lester http://jurist.org/ JURIST Guest Analyst Professor Charles Kambanda, from the LLM Center at St. John's University says the Military High Court of Rwanda did not have jurisdiction over the defendants from President Kagame's former military and political inner circle because of their current status as refugees...<br><hr height="1"><br><table align="LEFT"cellpadding="0"cellspacing="0"><tbody><tr><td><imgsrc="http://jurist.org/forum/samplename.pg" align="LEFT"hspace="0"vspace="2"></td><td><imgsrc="http://jurist.law.pitt.edu/images/s.gif"height="1" width="5"></td></tr><tr><td colspan="2"><imgsrc="http://jurist.law.pitt.edu/images/s.gif" height="1" width="1"></td></tr></tbody></table><font size="3"><b>I</b></font>ntroduction:

1. The defendants are President Kagame's former military and political inner circle. The first defendant is Lt. General Faustin Kayumba Nyamwasa, former army chief of staff. In March 2010 he sought political asylum in South Africa. The Lt. General survived an assassination attempt near his home in Johannesburg, South Africa. Lt. General Kayumba's supporters, family and some individuals within the South African government linked the government of Rwanda to the attempt on the General's life. South Africa recalled its ambassador. Diplomatic relations between the two countries have since remained strained. Article 2 subsection 2 of the Convention Governing the Specific Aspects of Refugee Problems in Africa is categorical in that "the grant of asylum of refugee is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any member state. However, Rwanda seems to have held this asylum case against the South African government. Major Dr. Theogene Rudasingwa, former ambassador to the US and former Director of work in President Kagame's office, sought political asylum in US, in April 2005. Dr. Gerald Gahima is former prosecutor general of the Republic of Rwanda. He sought political asylum in the US, in July 2004. In November 2007, Col. Patrick Karegeya, the former intelligence Chief, sought asylum in SA.


2. The four were prosecuted for, and convicted of, disturbing the public order, threatening state security, making insulting and defamatory statements to the person of the president and sectarianism. Lt. Gen. Faustin Kayumba Nyamwasa and Major Dr. Rudasingwa were, in addition, each convicted of deserting the army. All were tried, convicted and sentenced in absentia. Col. Karegeya and Dr. Gerald Gahima were sentenced to 22 years in prison, while Lt. General Kayumba Nyamwasa and Major Rudasingwa were sentenced to 24 years in prison.


Facts of the Case:

3. While in their respective countries of refuge, the defendants wrote and publicized a joint publication, Rwanda Briefing. The document detailed the authors' concerns over Kagame's government and the reasons why the four fled Rwanda. They jointly or individually elaborated on their Rwanda Briefing through articles and interviews with the media. The defendants accused the President of, among other things, destabilizing the Congo, henceforth DRC, corruption and discrimination. The government of Rwanda alleged that through the defendants' publications, interviews and articles, the defendants committed crimes that are punishable under Rwandan law. Prosecution relied exclusively on the defendants' publicized documents. The government of Rwanda circulated arrest warrants seeking the defendants' extradition immediately after judgment.


Jurisdiction:

4. The Military High Court of Rwanda did not have personal jurisdiction over the defendants. At the time they gave the contentious interviews and/or wrote their publications, the defendants were refugees. Refugees are protected under the UN Convention Relating to the Status of Refugees, adopted in 1951. Article 12 of the convention, in part, provides:

Refugees shall be governed by the law of the country of his

domicile or, if he has no domicile, by the law of the country

of his residence.

The legal impact of refugee status is, among other things, termination of any personal contacts between the refugee and his native country. No personal contact exists between the defendants and Rwanda. Due process requires that any state's court's exercise of jurisdiction be founded on legal contact between the state and the defendants. In criminal cases, there must be personam jurisdiction. By virtue of the defendants' refugee status, Rwandan courts lost legal contact with the defendants. The Convention Relating to the Status of Refugees bars the defendants from appearing, in person or through an agent in any Rwandan court. The defendants' countries of refuge are prohibited, under the Convention Article 33 principle of non-refoulement, from sending the defendants to appear in a Rwandan court.


5. Rwanda, like any other sovereign, has a legal right and duty to enforce their domestic laws and to punish domestic crimes. However, where there is conflict of law between an international convention and domestic law, the convention prevails. Rwanda's Constitution Article 190 provides:

Upon their publication in the official gazette, international treaties

and agreements which have been conclusively adopted in accordance

with the provisions of law shall be more binding than organic laws and

ordinary laws except in the case of non-compliance by one of the parties.

The scenario and level of analysis might be slightly different if a refugee is accused of international crimes, as defined by the Statute of the International Criminal Court, and the country of refuge fails to prosecute. In this case, the defendants were not prosecuted under the principle of universal jurisdiction. It was an outright error, in fact and law, for the Military High Court Judge of Rwanda to reason that Rwanda's domestic law supersedes the International Convention Relating to the Status of Refugees. A refugee is entitled to all legal rights not reserved to citizens of his country of refuge. At the time the defendants publicized their mouthpiece and interviews, they were exercising the constitutional rights they are entitled to in their countries of refuge. The kind of speech for which the defendants were convicted by the Military High Court of Rwanda is protected speech in the defendants' countries of refuge. Rwanda has a legal duty to respect the legal rights other countries accord to their people.


Substance of the Law:

6. Prosecution and conviction for 'disturbing public order, threatening state security, making insults to the person of the president' was based on Article 166 of Rwanda's Penal Code which provides that:

Anyone who through speeches made at meetings or public places, or by written or printed material, images or emblems of any kind displayed, distributed, sold, offered for sale or for public view, either by knowingly spreading false reports, in order to incite or try to incite people against the established powers, in order to incite or try to incite citizens against each other, to alarm people and thus in order to bring unrest in the territory of the Republic, will be punished with imprisonment from two to ten years and a fine of 2000 to100,000 francs or one of these penalties, without prejudice to more severe penalties under other provisions of this Code.


Article 160 of the same Penal Code also provides that:

It is punishable, in times of war, with imprisonment from ten to
twenty years, in peacetime, with imprisonment from five to ten years,
someone who: 1. By hostile acts not approved by the government, exposes the Republic to hostilities from a foreign power, 2. By acts not approved by the government, exposes Rwandans to reprisals, [emphasis added] 3. Meets with intelligence agents of a foreign power so as to harm the military or diplomatic situation of the Republic or its essential economic interests. It is punishable, in times of war, with imprisonment from eight days to two years and a fine of one thousand to five thousand francs, and min peacetime, to imprisonment from eight days to two months and a fine of 500 to 2,000 francs; 1. The offer or the proposal to commit an offense under this article; 2. The acceptance of this offer or proposal.


Prosecution and conviction for sectarianism was based on Rwanda's law that punishes discrimination and sectarianism. The law number 47/2001 provides:

Every oral expression, writing, and every action based on ethnicity,
origin, nationality, skin color, physical features, sex, language,
religion, or opinions intended to deprive one or more persons of their
rights under the laws in force in Rwanda and in the International
Conventions to which Rwanda is party. As for partisanship, it is defined as "any oral expression, writing or any act of division, which can generate conflict within the population, or cause disputes based on discrimination as provided in
this Article.


7. Prosecution argued that in their Rwanda Briefing, the defendants accused the President of institutionalizing Tutsi minority oppression over the Hutu majority. All the defendants are said to be Tutsi. The authors of Rwanda Briefing called on Rwandans to fight what the defendants called inequality. The defendants underlined that, in their opinion, President Kagame is a dictator. In their documents, the defendants are emphatic that fighting a dictator is a difficult venture all Rwandans ought to undertake. The Military High Court of Rwanda found these and similar assertions in the defendants' publication, Rwanda Briefing, to constitute 'disturbing public order, threatening state security, making insults to the person of the president and sectarianism'.


8. The law on disturbing public order, threatening state security, making insults and sectarianism in Rwanda has one major characteristic: making speech and expression crimes. The laws create a unique set of political crimes. The rationale of these apparently medieval laws in contemporary Rwandan society appears to be a methodical synergy to foster undue restraint on people's freedom of speech and right to opinion. These laws contravene Article 33 of the 2003 Constitution of Rwanda, which guarantees freedom of thought, opinion, conscience, religion, worship and the public manifestation of the same freedoms. Furthermore, they are inconsistent with Article 19 of the International Convention on Civil and Political Rights (ICCPR) and Article 9, subsection 2, of the African Charter.


9. We contend that freedom of speech and the right to opinion in both the Constitution of Rwanda and the ICCPR are not absolute. Article 34 of Rwandan Constitution subjects the enjoyment of the right of freedom of press and information to, "respect of public order and good morals, the right of every citizen to honour, good reputation and the privacy and family life and the protection of the youth and minors." Article 9, subsection 2, of the African Charter on Human and Peoples' Rights stipulates that, "every individual shall have the right to express and disseminate his opinion within the Law."


10. It is settled legal tenet that the law restricting fundamental rights and freedoms must be accessible, unambiguous, and drawn narrowly and with precision. The Rwandan laws under which the defendants were convicted, 'disturbing public order, threatening state security, making insults to the person of the president and sectarianism' are ambiguous, overbroad and lack precision. Article 160 of the Penal Code literally targets every form of expression and opinion. Any speech can be interpreted as "alarming people and bringing unrest in the territory of the Republic." Rwanda's Law number 47/2001 defines sectarianism as, "any oral expression, writing or any act of division, which can generate conflict within the population, or cause disputes based on discrimination as provided in this Article." This definition sanctions any speech or opinion that may not be popular or favorable to politicians.


11. Any restriction on people's right of expression and opinion must be subjected to the twin principles of necessity and proportionality. The principle of necessity requires that restrictions on the people's right of expression and opinion serve permissible purposes and are necessary to protect those purposes. First, these laws confuse genuine incidents of harmful speech and legitimate freedom of thought and expression. Second, the laws do not strike a balance between prohibiting harmful speech and supporting freedom of opinion and expression. Consequently, the laws paralyze any meaningful debate on social and political issues that have any bearing on political or economic realities of the people of Rwanda. These laws prohibit discourse on any controversial aspect of Rwandan society. Ultimately, the purpose of these apparently out-of-fashion laws is to ban meaningful debate. This is not a permissible purpose.


12. Laws, like law number 47/2001 and articles 160 and 166 of the Penal Code of Rwanda, that restrict people's freedom of expression because the subject matter is controversial are inconsistent with the demands of protecting people's freedom of speech as required by Article 33 of Rwanda's constitution. The US Supreme Court, in the 1960 case Shelton v Tucker is categorical:

Even though the Government's purpose be legitimate and substantial,

that purpose cannot be pursued by means that broadly stifle fundamental

personal liberties when the end can be more narrowly achieved.

Ideally, Rwanda's laws should seek to prevent the country's unremitting violence, genocide, war crimes, crimes against humanity and hatred. The root cause of these social evils is failure of Rwandans to co-exist with "others" they consider "bad" people. It is failure to embrace pluralism, diversity and other democratic values. The narrowest way of preventing such social perils is institutionalizing co-existence of people with diverse views. In the 1971 case, Organization for a Better Austin v Keefe, the US Supreme court observed that:

Criticism of public measures or comment on government action

[definitions] however strongly worded is within reasonable limits and

is consistent with the fundamental right of freedom of speech and

expression. This right is not confined to informed and responsible criticism

but includes the freedom to speak foolishly and without moderation. So long

as the means are peaceful, the communication need not meet standards

of common acceptability.


13. All these laws fail to recognize that freedom of opinion and expression cannot be limited to information and ideas that are favorably received or regarded as complementary, but also to those that offend and shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society, as espoused in 1976 in Handyside v United Kingdom, European Court of Human Rights .


Policy issues

Criminal defamation in Rwanda

14. Rwanda's decision to maintain criminal defamation on their laws is a practical challenge to ideals and aspirations of good governance and democratic values. In this case, the defendants were found guilty of 'defaming' the President of the Republic of Rwanda. It is an issue of general acceptance in democratic societies that people are free to inquire into their political leaders' public, and even private, transactions. The rationale is that political leaders are custodians and agents of the body politique. A principal has a right to know everything his agent does even when the agent would feel uncomfortable to, or does not want to, report to the principal. In democracy, the people are the principal. The president is an agent. A principal ought to have unlimited access in the process of inquiring into what the agent does on his behalf. It is immaterial that the result of the principal's inquiry is a mistake, provided the motive was to do his legitimate task. Criminalizing defamation is premised on intimidating people, or principal from inquiring into what their political leaders, or agents do, or omit to do, with the powers and authority entrusted to them by the citizenry. The defendants' conviction for criminal defamation is a red flag within this paradigm.


15. In any democratic society, whenever defamation involves a matter of public concern, the burden of proof is on the public official to prove that the statement was made with knowledge that it was false. The Bill of Rights gives people absolute unconditional privilege to criticize official conduct despite the harm which may flow from excess and abuses. In New York Times Co. v Sullivan, the Supreme Court of the United States held that:

It is prohibited for a public official to recover damages for defamation or

falsehoods that relate to his official conduct [business] unless he proves that

the statement was made with actual malice. It was erroneous to prosecute

the defendants for their legitimate inquiry into the country's administrative

style and system.


Deserting the Military

16. Lt. General Faustin Kayumba Nyamwasa and Major Theogen Rudasingwa were each convicted of deserting the army. At the time he fled Rwanda, Lt. General Faustin Kayumba Nyamwasa was Rwanda's Ambassador to India. Major Theogene Rudasingwa was Director of Work in the president's office. The two defendants were therefore civil servants at the time they fled the country. Being a soldier in Rwanda is a full-time job. Civil service is also a full-time job. In any democracy, one cannot be a soldier and public servant at the same time. The issue is whether the defendants were discharged from the army by virtue of being appointed into civil service positions. The answer is in the affirmative. In General David Tinyefuza v Attorney General, the Constitutional Court of Uganda reasoned that:

The Army is a continuing full -time job and a member of the Army is liable

to be employed on active service any time. Similarly [...] a public servant

is engaged on full time basis. It follows that an army officer cannot be a

public servant at the same time. And so when [...] the President

appointed the petitioner to a public service job [...] he thereby took him out

of the army. There is no doubt that the President's power to appoint Army

Officers include[s] power to remove them from the army ... the petitioner

ceased being a member of the army [...] when he was appointed.

When the President appointed Lt. General Kayumba Nyamwasa and Major Theogen Rudasingwa into civil service, the two were effectively, by implication of law, discharged from the army. The Military High Court of Rwanda wrongly assumed that the defendants deserted the army. At the time they fled Rwanda they had been duly discharged by virtue of their appointments into civil service.


Fair hearing, fair play and justice

17. Absence of fair hearing, fair play and injustice is presumed in any case where an incompetent court assumes power over the case or person. A court that indicts a person over whom it has no jurisdiction is arbitrary and acts in vain. To the extent the Military High Court of Rwanda lacked personam jurisdiction in this criminal case, there was no fair hearing, and no fair play. The court was inherently unjust.


Effect of the arrest warrants issued against the defendants

18. No democratic jurisdiction would give effect to an arrest warrant that emanates from a flawed court case. The preliminary discussion, whenever extradition is in issue, is whether the court in which the defendants were prosecuted and convicted had jurisdiction. This case fails on the preliminary test. The Military High Court did not have jurisdiction. The Rwandan government declared that the defendants are now on Red Notice. The issue is whether INTERPOL can intervene in this case. Article 2 of the INTERPOL Constitution and General Regulations, provides for the role of INTERPOL as:

To ensure and promote the widest possible mutual assistance between all

criminal police authorities within the limits of the laws existing in the

different countries and in the spirit of the Universal Declaration of

Human Rights.

INTERPOL is not allowed to intervene in any venture that would encourage breach of the minimum human rights standards in the Universal Declaration of Human rights. The case in question is a typical example where the state is using its excessive powers to curtail people's basic human rights. This is inconsistent with the spirit and letter of the Universal Declaration of Human Rights. INTERPOL is barred from intervening in such cases. If INTERPOL intervened, the institution would be getting involved in a political enterprise, which would be contrary to the spirit of Article 3 of INTERPOL Constitution. However, the government can use extrajudicial and/or illegal means to subject the defendants to Rwanda's jurisdiction. All the possible legal extrajudicial means are inapplicable in this case. Kidnapping the defendants is a possible illegal means to subject the defendants to Rwanda's jurisdiction. However, this method is unacceptable among democratic countries, Rwanda included.


Conclusion

18. The Military High Court of Rwanda did not have jurisdiction over the defendants because of the protection the defendants have under the international convention on the protection of refugees. At the time the defendants wrote the documents in issue, they were exercising their constitutional rights in the countries of refuge. The Rwandan court failed to appreciate that the facts of the case presented a genuine conflict of laws. Rwanda has a right to enforce its domestic law. However, where enforcing such a law would be inconsistent with an international convention to which Rwanda is a state party, the convention supersedes domestic law. It was an outright error, in fact and law, for the Rwandan court to believe that domestic law prevails in such case. Most of the laws that were applied contravene Rwanda's constitution and are inconsistent with the relevant international legal instruments to which Rwanda is still a state party. The 'crimes' for which the defendants were prosecuted are 'speech crimes'. None of the defendants appear to have deserted the army. Each of the defendants that were convicted of deserting the army were duly discharged from the army, by implication of law, when the President appointed them into the civil service. The case is manifestly a political battle concealed in the sanctuary of justice - the court. The defendants may not be extradited because of the jurisdiction hurdles the court failed to address. INTERPOL is, as a matter of their constitution and regulations, barred from executing the arrest warrants that were issued against the defendants. The Military High Court of Rwanda probably acted in vain.


<em>Professor Charles Kambanda is also a public policy analyst and international human rights lawyer

</em>


<em>Suggested citation: </em>NAME, <em>TITLW</em>, JURIST - Annotations,

March 2, 2011, http://jurist.org/annotation/2011/March/article_url.php.


]]> The Lisbon Treaty tag:jurist.org,2010:/annotations//8.30756 2010-01-25T16:01:00Z 2010-06-25T02:07:11Z JURIST Guest Analyst Andreas R. Ziegler is the Vice Dean of the Faculty of Law and Criminal Sciences and a Professor of Law at the University of Lausanne in Switzerland. He was a Visiting Professor at University of Pittsburgh School... JURIST Staff Andreas R. Ziegler is the Vice Dean of the Faculty of Law and Criminal Sciences and a Professor of Law at the University of Lausanne in Switzerland. He was a Visiting Professor at University of Pittsburgh School of Law in 2009. His papers are available on SSRN.


On 1 December 2009, the Lisbon Treaty entered into force. It is the latest addition in a long line of treaties aimed at reforming the legal structure and function of the European Union. Among these other such treaties include the Amsterdam Treaty, the Maastricht Treaty, and the Nice Treaty. To state things clearly, the Lisbon Treaty is just a technical device that will amend the two existing treaties (one more institutional, the other more policy-oriented) which will remain the main legal foundations of the EU system.

What makes this treaty and its history of negotiations so interesting is more what it has not achieved than what it has achieved. It should not be forgotten that at the core of this project was the idea to provide the European Union with a "European Constitution" (Laeken Declaration of the European Council of 2001). Such a constitution was eventually drafted by a European Convention established thereafter and signed by all Member States in 2004. It would have constituted the proper legal foundation containing typical elements for a national constitution, such as a catalog of fundamental rights, a list of exclusive and shared competences, a President of the European Council as well as a European Minister of Foreign Affairs, an official anthem, and a flag.

In 2005 the rejection of such a European Constitution by Dutch and French voters led to the need for a "reflection pause" of almost two years, during which European leaders sought to find an alternative way to reform the EU without overwhelming voters with symbols like a "Constitution", a European flag, or an anthem.

On 13 December 2007 all Member States signed the so-called "Lisbon Treaty". Despite its much more modest approach, its ratification process was again a rather nerve-racking endeavor. This time, countries like France and the Netherlands, accompanied by most other Member States, decided against holding referenda. In Ireland, however, the people persisted in rejecting the treaty from 2008 until finally accepting it in a second referendum in 2009-a positive result of the financial crisis particularly felt in that country, some would say. Additionally, the supreme courts of several member states were asked to rule on the constitutionality of this new treaty (Germany, Czech Republic etc.), and some politicians (e.g. in Poland, the UK and the Czech Republic) used their (potential) right to ratify the treaty for internal politics before doing so.

Even if the Lisbon Treaty is much more modest in allure than the European Constitution would have been, it contains a number of important elements that should make it easier for the EU to face the challenges of an ever-expanding (physically) and increasingly-closer-knit union at the beginning of the 21st century aiming at soon uniting more than 30 Member States:

1. Two new high-caliber offices: The first is the permanent President of the European Council. Before, this position was rotating between the heads of governments of the member state holding the presidency. The permanent character is meant to increase the visibility and the continuity of the European Council's policy. The first permanent President is the former Belgian Prime Minister Herman Van Rompuy. His mandate is for two and a half years and will be renewable only once.

The second new office is the post of the High Representative for Foreign Affairs. Catherine Ashton, the former external trade Commissioner of the EU, will be first in office. She will be responsible for the tasks that were previously taken care of by the High Representative for Common Foreign and Security Policy (Javier Solana) and the Member of the European Commission responsible for External Relations. Here again the main goal is to strengthen the visibility and coherence of the European Union's common foreign and security policy.

2. Legal personality for the European Union: Institutionally, the Lisbon Treaty brings an end to the awkward legal situation that existed before its entry into force whereby the EU had no official legal personality, while its older sister the European Community (EC) had ever since 1957 been endowed with one. It was basically a birth defect from the origin of the EU in 1993 which was now cured.

3. Disappearance of the EC: With the EU officially obtaining its full legal personality, the EC as an institution will disappear so that the long-standing confusion as to whether one should use the term EU or EC in a specific situation will be a thing of the past. At the same time, the Lisbon Treaty did not allow for a complete merging of the treaties establishing the EU and the EC. The latter is now called the "Treaty on the Functioning of the EU" and will probably be merged with the "Treaty establishing the EU" at the next occasion (which may take some time).

4. Abolition of the three-pillars structure: Another anomaly of the development of the EU and the EC is also buried on this occasion. The distinction between the EC pillar- the "Common Foreign and Security Policy" (CFSP) and the area of "Police and Judicial Co-operation in Criminal Matters" is abolished although, of course, different decision-making procedures continue to apply to different areas within the EU.

5. Increased external competence of the EU: Despite the lack of a clear legal basis, the EU had already concluded treaties with third parties before the entry into force of the Lisbon Treaty. This will now be the case even more often as its treaty-making power is now clearly regulated and the Lisbon Treaty modifies the existing competences in the external field of the European Union considerably, thereby making the procedure where Member States and the Union have to ratify treaties (mixed agreements) less common. What may become very important (e.g. in future WTO negotiations) is the fact that the European Parliament will enjoy much more power with regard to the formulation of the common commercial policy.

6. General strengthening of the European Parliament's position: Apart from the area of external economic relations, the European Parliament's role is strengthened in a number of areas such as has constantly been the case since the creation of this institution.

7. Acknowledged role for the national parliaments of the Member States: An interesting development is the fact that the national parliaments of the Member States will be more closely involved in the European decision-making process by way of the receipt of specific information at an early stage and a right to complain to the Commission or even the European Court of Justice if they believe that the subsidiarity principle (holding that measures should be taken at the level of government at the most local level possible) has been infringed upon. This development must be understood as a reaction to the ongoing criticism of the EU for a lack of democratic legitimacy.

8. Catalog of EU areas of competence: The Lisbon Treaty introduces a transparent list of exclusive and shared competences as distributed between the EU and the Member States, as is common to the constitutions of many federal states. The list does not create new competences for the EU, but it should make the distribution more transparent.

9. Strengthening of the European Council: While the European Council had already existed as a politically important institution before, the Lisbon Treaty transforms it into a proper organ. In addition, its powers are relatively important (much to the detriment of the Commission and Parliament in certain fields).

10. Charter of Fundamental Rights becomes legally binding: Although it was not possible to include a catalog of fundamental rights in the EU Treaty (as had been a goal for the European Constitution), the Lisbon Treaty formally creates a binding instrument by providing that all EU measures must be in accordance with the Charter of Fundamental Rights 2000.

* * *

Despite its challenging history of negotiations, the Lisbon Treaty is a logical continuation of prior treaty amendments. The EU is aiming to become more visible on the international scene by giving faces to some of its important offices. It's weight is strengthened in relation to the Member States and at the same time Parliament is strengthened within the EU to compensate for the felt loss of democratic control. This general tendency towards more "supranationalism" is slightly counter-balanced by providing the European Council with important powers and giving a role to national parliaments. From a US perspective, it is certainly important to note that the role of the two new officers and the European Parliament will change the way external relations are dealt with within the EU. This may have implications in particular in areas that continued, until now, to be dominated by the Member States or the Council. The conclusion of the WTO Doha Round in the near (or remote) future could already be an interesting test for this new constellation. --------]]> Ricci v. DeStefano tag:jurist.org,2009:/annotations//8.30757 2009-08-31T15:01:00Z 2010-06-25T02:07:12Z JURIST Guest Analyst Sheila R. Foster is the Albert A. Walsh Professor and Associate Dean for Academic Affairs at Fordham Law School in New York City, where she teaches and writes on issues relating to anti-discrimination law and environmental justice.... JURIST Staff Sheila R. Foster is the Albert A. Walsh Professor and Associate Dean for Academic Affairs at Fordham Law School in New York City, where she teaches and writes on issues relating to anti-discrimination law and environmental justice. She is also Co-Director of the Stein Center for Law and Ethics. She is the author (with R. A. Lenhardt) of The Racial Subject in Legal Theory in Keith E. Whittington et al, eds., The Oxford Handbook of Law and Politics (2008). Her papers are available on SSRN.

Ricci v. DeStefano (Supreme Court of the United States, June 29/09) was a complicated and difficult case. At issue was the City of New Haven's decision to throw out the results of a promotion test administered in order to fill vacant lieutenant and captain positions in the fire department because the results excluded all black firefighters who passed the test. Plaintiffs, 17 white firefighters and one Latino firefighter, scored high enough on the exam to be eligible for promotion but were instead told that they would not be promoted when the City refused to certify the test results. The aggrieved black firefighters, who also passed the test but scored below the plaintiffs, discovered that if the City certified the test results not one of them was eligible for promotion. The City of New Haven faced a "damned if you, damned if you don't" scenario. Had the City abided by the results of the promotion test, it would have to defend itself in a lawsuit by the black firefighters for using a promotion process that produced a racially disparate impact, in possible violation of Title VII of the Civil Rights Act. However, refusing to follow the results of the promotion test would (and did) subject the City to a disparate treatment lawsuit by white firefighters for depriving them of promotions based on racial considerations, also in possible violation of Title VII.

Ricci, in essence, posed a tension between two very entrenched commitments embraced by most of our antidiscrimination laws. The prohibition against disparate treatment seeks to eliminate decisions made on the basis of judgments that reflect irrational prejudice or stereotypes about certain groups rather than fair assessments of a an individual's abilities and merit. The prohibition against disparate impact seeks to eliminate (or at least scrutinize) facially neutral rules and practices which may be fair in form but discriminatory in practice. Discrimination under the latter prohibition often exhibits itself through the existence of stark and adverse impacts on groups historically subjected to more explicit forms of disparate treatment. These two commitments have coexisted in civil rights law for almost four decades without posing much of a conflict with each other, at least until Ricci.

There was nothing inevitable about the tension posed in the case between the prohibition against disparate treatment on the one hand and disparate impact on the other. In important ways, these two commitments tend to reinforce each other in creating equal opportunity in the competition for scarce positions. Fidelity to both should operate, ideally, to force employers to avoid using selection criteria with questionable connections to successful job performance and that tend to reinforce preexisting racial (and gender) barriers to employment. When an employer uses objective selection criteria that are closely related to the abilities and skills required of the position at issue, there is less of a chance that bias, racial or otherwise, will be the basis for its decision. On the other hand, we worry about the fairness of job selection criteria when the connections between those criteria and job performance is more attenuated and those criteria tend to entrench historical patterns of racial (or gendered) exclusion and inequality.

The five member majority in Ricci sought to remain faithful to both of these statutory commitments by fashioning a test that would mediate the tension between the two. The tension arose, the Court reasoned, because the City's decision to avoid certifying a test that would result in a stark racially disparate impact is akin to the type of race-conscious decision making frowned upon in the affirmative action context. To be sure, Ricci was not a classic affirmative action or "reverse discrimination" case. That is, no racial preferences were at work here. There was no decision to hire, admit, or promote a lower-scoring applicant over a higher scoring one based on racial considerations. In fact, the City ultimately chose not to promote anyone and to start from scratch—to design a promotion test that would not so starkly exclude an entire class of firefighters and would more accurately assess the skills required for the positions at issue.

Nevertheless, the Court's commitment to normative colorblindness in its constitutional jurisprudence ultimately drove the majority's view of the City's actions. In other words, the Court's desire to banish racial considerations from decision making altogether results in a very cramped reading of Title VII in order to equate a concern with avoiding discriminatory impacts with discrimination itself. Notably, the lower federal courts and the four dissenters refused to equate the two, particularly given the long history of exclusion of African Americans from professional firefighting ranks (including in the City of New Haven).

In addition to importing into Title VII law the colorblindness norm, the majority also imported from equal protection law the "strong basis in evidence" standard. This standard requires the decision maker to justify the necessity of race-conscious remedial relief. The Court in Ricci ruled that an employer cannot discard a test out of concern for racially disparate impacts absent a strong basis in evidence that the test was deficient and that discarding the results were necessary to avoid violating the disparate impact provision. Whether a strong basis in evidence existed here was in much dispute, although one would not know it from the majority opinion. It is only by reading the dissenting opinion that one appreciates exactly how contested the evidence actually was on the record.

Much of the factual dispute in Ricci revolved around the strength of the test's relationship to actual job performance and the availability of less discriminatory assessments of performance. On the one hand, the City had taken care to hire an outside consultant to develop and administer both the written and oral portions of the test in an attempt to closely track the technical knowledge required by the position and to minimize any bias in favor or against a particular racial group. The company based the written multiple choice and oral exams on interviews and observations of current officers and their supervisors, as well as various written department materials covering the duties of the respective positions. On the other hand, critics of the test faulted it for testing memorization and for failing to test on-the-ground leadership and other skills actually utilized by positions at this level.

Perhaps most importantly the City required the consultant to adhere to a testing procedure outlined in its two-decade old contract with the firefighters union, which required administering a test consisting of a written portion worth 60% and an oral examination worth 40% of an applicant's score. Such heavy reliance on written examinations became a central focus of critics of the test and its results, given that most municipalities have moved away from such tests due to their doubtful efficacy in measuring the qualities of a successful fire officer and their propensity toward yielding racially disparate results. One of the problems with written exams is that they tend to create advantages for second and third generation firefighters, who are most often white and have easier access to study materials than do first generation firefighters, who are most often ethnic minorities without such support networks. Such unequal access is one of the legacies of the long history of exclusion of minority groups from the profession. Despite these problems with written promotion examinations, there was no evidence that the City or its consultant ever considered alternative testing methods which might have produced less exclusionary results.

One might argue that what ultimately swayed the majority to rule in favor of the plaintiffs was the way in which the City botched the promotion process. The plaintiffs appeared quite reasonable in relying (to their own detriment) on a painstakingly designed test as the route to promotion in the department. The City's end of the game decision to throw out the test after it was administered (and despite the existence of arguably more efficacious and less discriminatory promotion tests) seems egregious and careless. It is not difficult to have sympathy for these plaintiffs and to not want to reward the City for its failure to plan and design a better and fairer promotion process.

There is also language in Ricci to suggest that the decision could be limited to circumstances in which the employer discards test results after the test is taken. Ultimately however, the majority's language sweeps much broader. The Court treats the City's concern for the stark disparate impact of an arguably flawed test with invidious race-based actions deserving of the type of judicial scrutiny imposed in the constitutional context. The import from equal protection law of the color blindness norm, as well as the stringent evidentiary standard that accompanies it, shifts the landscape of civil rights law in important ways. It elevates concern with race-blindness above the concern at the heart of disparate impact law—to remove employment criteria that constitute "built in headwinds" for majority groups and that are not closely linked to the skills and abilities to do the job at issue. Ricci's reach might yet not extend as far and wide as much of the majority's language seems to suggest. For now Ricci casts considerable doubt on the prohibition against disparate impact, which has been a crucial tool in the unfinished civil rights project of creating equal opportunity for all. --------]]> The Military Commissions Act of 2006 (MCA) tag:jurist.org,2007:/annotations//8.30754 2007-10-20T15:01:00Z 2010-06-25T02:07:11Z JURIST Guest Analyst David Glazier is a law professor at Loyola Law School Los Angeles, where he teaches foreign relations law and the law of war. Before attending law school, Glazier served twenty-one years as a US Navy surface warfare... JURIST Staff David Glazier is a law professor at Loyola Law School Los Angeles, where he teaches foreign relations law and the law of war. Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer, commanding the USS George Philip and participating in UN sanctions enforcement against Yugoslavia and Haiti. He has written extensively on military commissions.

General Winfield Scott created the military commission in 1847 to maintain order among U.S. forces campaigning in Mexico. Convinced that the constitutional authority involved belonged to the legislative branch, Scott informed the Secretary of War and Attorney General that he would implement the commissions unilaterally "until Congress could be stimulated to act."

In the absence of definitive statutory guidance, Scott and his successors during the Civil War and Philippine Insurrection conducted trials closely conforming to court-martial procedure, including faithful adherence to the same rules of evidence. This changed only during World War II after President Roosevelt authorized a military commission he established to try eight Nazi saboteurs in 1942 to diverge from courts-martial rules, including authority to admit any evidence with probative value to a reasonable man. Although Roosevelt modified his order later in the war to call for closer conformance to court-martial procedure, President Bush based his own 2001 military order resurrecting the tribunal almost verbatim on FDR's original superseded directive. (Military commission history is detailed by this author in "Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int'l L. 5 (2005)).

After 159 years and the trials of more than 10,000 individuals, the Supreme Court's Hamdan v. Rumsfeld decision finally stimulated Congress to act. The resulting Military Commissions Act of 2006 (MCA) was one of the last achievements of the Republican congressional majority.

Public focus during MCA consideration centered on efforts by Senators Graham, Levin, McCain, and Warner to end the specific commission practices to which the Court objected, such as the ability to exclude the defendant from his own trial and to convict on the basis of evidence he wasn't allowed to see. Although the MCA corrects these flaws, the Act's reauthorization of military commission trials has nevertheless been portrayed by administration champions as a smackdown to the judiciary and reaffirmation of broad executive discretion. John Yoo termed it "a stinging rebuke to the Supreme Court . . . . which restores to the president command over the management of the war on terror." (John Yoo, "Sending a Message," Wall Street Journal.com, Oct. 19, 2006). Even MCA critics generally seem to agree. Amnesty International warned that:

By passing the Military Commissions Act, the United States Congress has, in effect, given its stamp of approval to human rights violations committed by the USA in the "war on terror". This legislation leaves the USA squarely on the wrong side of international law, and has turned bad executive policy into bad domestic law. (Amnesty International, "Rubber Stamping Violations in the 'War on Terror,'" Sep. 29, 2006)

The reality is more complex, particularly since the statute does much more than just regulate commission procedure. On one hand the MCA provides statutory trial mandates that restore much of the original commonality between military commission and court-martial procedure. A trial conducted under the MCA will look far different, and have the potential to be much fairer, than under the administration's initial rules. In this sense the Act provides a substantial rebuke to the President. But in the hands of a military judge lacking the highest sense of judicial integrity and impartiality, the rules of evidence codified by the Act can permit the introduction of testimony extorted through coercive interrogation practices as well introduction of hearsay of dubious reliability. So even the MCA's statutory mandate still falls short of ensuring fair trials. Another problem is that some of the crimes chargeable under the MCA fail to state violations of the law of war. Military jurisdiction over such offenses could thus be unlawful, potentially making participation in such trials a war crime in itself.

Other matters included in the MCA are a strict limit on habeas challenges by detainees, a retroactive rewrite of the War Crimes Act of 1996 to narrow the scope of punishable Geneva Convention Common Article 3 violations, and a clear statement that the Conventions do not provide a legal cause of action. The gratuitous language used in several areas was likely intended as much as symbolic pokes in the eye to internationalists as meaningful law. An informed judgment about the MCA's impact requires understanding both the full scope of the legislation and its relationship to existing law and practice.

Specific Provisions of the MCA

The MCA is divided into ten sections, with the bulk of the bill contained in Section. 3, "Military Commissions." The following analysis follows the organization of the final enactment:

Section 1 provides the short title, "Military Commissions Act of 2006" and a table of contents identifying the ten sections.

Section 2 declares that authority granted the President to establish military commissions in Section 3 does not limit his authority to establish military commissions in areas under martial law or in occupied territories.

Comment: The latter language should not be controversial — administering territories under military occupation seems a core commander-in-chief function regulated by the law of war (i.e., 1907 Hague Convention IV respecting War on Land — recognized at Nuremberg as customary international law -- and the universally ratified Fourth Geneva Convention of 1949). The mention of martial law should be of more concern. President James Madison had his Secretary of War write to Andrew Jackson in 1815 that there was no constitutional authority for declaring martial law. The only two mentions of martial law in current U.S. law authorize territorial governors to declare it, not the President. (See 48 U.S.C. 1422 (Guam) and 1591 (Virgin Islands). A future President could potentially cite this MCA language as implicit congressional authorization for a declaration of martial law, just as passing mention of military commissions in two sections of the 1916/1920 Articles of War was held by the Supreme Court in ex parte Quirin to constitute congressional sanction of the Nazi saboteur's trial.

Section 3 provides detailed guidance regulating military commission procedure, adding a new Chapter 47A to Title 10, U.S. Code, immediately following the Uniform Code of Military Justice. These provisions are identified in this analysis by their ultimate Title 10 subchapter and section numbers. In the interest of brevity, minor or non-controversial, provisions are generally omitted.

Subchapter I — General Provisions

§ 948a. establishes definitions used throughout the MCA. The most important of these is "unlawful enemy combatant," which is either:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who . . . has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal (CSRT) or another competent tribunal established by authority of the President or Secretary of Defense.

"Lawful enemy combatant" is then defined using language taken from Article 4 of the Third Geneva Convention of 1949 governing combatants qualifying for Prisoner of War (POW) status.

Comments: By adopting "purposefully" as the mens rea for providing material support, the MCA would preclude, say, persons innocently donating to Muslim charities that are covertly aiding al Qaeda being subjected to military trial. But on the flip side, the definition of "material support" is still extremely broad and potentially subject to abuse. Furthermore, there is no clear support in the law of war for holding that providing support to an enemy qualifies as a war crime unless the individual owes some duty of allegiance, such as a resident in occupied territory who has an implicit duty to comply with directives of the occupying power. The second criteria, determination by a CSRT, is also problematic given emerging accounts of how unreliable these classifications have been, often based on flimsy evidence, or failing to consider exculpatory information. The option to use other tribunals could open the door for a process even less protective than the CSRT.

"Lawful enemy combatant" is peculiarly defined using Geneva Convention language, including "State party," which seems meaningless when removed from the treaty context.

§ 948b establishes foundational guidance, most importantly authorizing the President to use military commissions for the purposes set forth in the act. It declares that while the MCA is based on the UCMJ, the latter only applies where so provided in the MCA. The UCMJ's speedy trial, self-incrimination, and pretrial investigation provisions are then specifically declared inapplicable. § 948b also bars introduction of military commission holdings into courts-martial; declares military commissions to be "regularly constituted courts" meeting the requirements of Common Article 3 (CA3) of the 1949 Geneva Conventions, and denies those treaties as a source of rights to potential commission defendants.

Comments: The delegation of authority to the President is a subtle, but significant, reaffirmation that the constitutional authority underlying these trials belongs to Congress. The provisions denying UCMJ applicability evidence the MCA's hasty drafting. After stating that the UCMJ does not apply, the identification of specific non-applicable articles is redundant, and could open the door to challenges that UCMJ provisions not expressly excepted by the MCA should be applicable after all. The exclusion of commission holdings from courts-martial is troubling because the Guantanamo tribunals will logically be called upon to make decisions on law of war questions that have not been considered by American tribunals since World War II. IF these trials are fairly and thoughtfully conducted, decisions they reach could be of value in future courts-martial trying law of war violations. (Courts-martial can try any law of war violation, and often will be the only tribunal with authority to try U.S. service personnel or actual POWs). Statutory exclusion of commission precedents suggests an upfront assumption that these will be second-class tribunals, in which case the subsequent declaration that they meet CA3 standards seems contradictory. In any event, ascertaining compliance with law, whether statute or treaty, seems a core judicial function, not something to be accomplished by congressional fiat. The fact that Congress takes the trouble to declare that the commissions meet CA3 standards can at least be logically construed as legislative reaffirmation that it is not intending the MCA to be interpreted as superseding the Conventions under the last in time rule.

§ 948c limits military commissions to trying alien unlawful enemy combatants.

Comment: While concern has been expressed that the MCA's definition of unlawful enemy combatant authorizes their indefinite detention, the only explicit authorization in the bill is this authority to try them by military commission.

§ 948d establishes military commission jurisdiction as including offenses made punishable by the MCA or the law of war "before, on, or after September 11, 2001.

Comment: The only war crime generally recognized as capable of being committed before conflict begins are crimes against peace. These commissions are thus logically limited to trying crimes that date from the start of hostilities, yet the government has never definitively established an actual commencement date for this war. Absent a clearly defined early start date, jurisdiction over any offense committed before 9/11/2001 seems problematic.

Subchapter II — Composition of Military Commissions

§ 948j requires a military judge be detailed to preside over each military commission. (§ 949l gives the judge ruling authority equivalent to courts-martial judges).

Comment: This is a significant improvement from the original commission structure which rolled back the clock to a WWII-era presiding officer whose trial decisions were subject to override by vote of the trial panel and whose interlocutory actions were subject to review by the convening authority. Actual military judges have been used in courts-martial since 1968.

§ 948k governs trial and defense counsel assignment, allowing civilian as well as military "trial counsel" (prosecutors) but requiring an actual military judge advocate be assigned for the defense.

§ 948m requires a minimum trial panel of five members except for capital trials where a minimum panel of twelve is called for by § 949m(c).

Comment: This is a significant improvement from the original rule which permitted trial by panels of just three officers. Since convictions generally require only a 2/3 majority, a three member panel actually required the defense get a 2/3 majority to avoid conviction.

Subchapter III — Pre-Trial Procedure

§ 948r prevents defendants from being required to testify and excludes any statement obtained through torture. Statements obtained through coercion, or in which the degree of coercion is disputed, may be admitted if the military judge finds that:
(1) the statement is probative and reliable under the totality of the circumstances; and
(2) the interests of justice are best served by its admission.
If the statement was obtained after enactment of the Detainee Treatment Act of 2005 (DTA)(Title X of P.L. 109-148, 119 Stat. 2739), then it must also not have been obtained in violation of § 1003 of that act, i.e., it must not be treatment that would violate the 5th, 8th, or 14th Amendments to the U.S. Constitution.

Comment: This section is one of the most troublesome provisions of the MCA. Given how narrowly the Administration has defined torture, even the most egregious interrogation procedures used at Guantanamo and elsewhere likely fall only in the coercion category. The language might also leave room for prosecutors to argue that a statement obtained by actual torture was merely coerced, making the degree of coercion then "disputed." Under the literal MCA wording, a judge could then decide to admit it. The extensive discretion to admit coerced testimony, particularly if obtained before 2005, means that the ultimate fairness of these trials likely depends on how liberally judges are willing to interpret the terms of art "reliable" and "interests of justice."

Subchapter IV — Trial Procedure

§ 949a authorizes the Secretary of Defense, in consultation with the Attorney General, to make specific rules for military commission procedure, calling for principles of law and rules of evidence to conform with those for court-martial to extent deemed practicable. The accused is specifically entitled to see evidence entered against him, to be present for all trial sessions, and to defend themselves. The "probative to a reasonable man" evidentiary standard is specifically authorized but commission judges are now required to exclude evidence whose probative value is substantially outweighed by danger of unfair prejudice. Hearsay is admissible so long as the opponent is given advance notice and the opportunity to demonstrate that it is "unreliable of lacking in probative value." Congress must be notified of any rule changes 60 days before they go into effect.

Comment: By requiring detailed rules promulgated in advance, this section mandates significant improvement over the initial commission proceedings in which presiding officers were observed to largely make up procedural rules as they went along. (The requirement for standing rules contained in this section was subsequently met through the promulgation of The Manual for Military Commissions in January, 2007). New requirements that the accused be present at all actual trial sessions, and be able to see all evidence that is actually introduced against them, address the most serious tribunal criticisms cited by the Hamdan majority. While the hearsay provisions trouble many attorneys steeped in Anglo-American legal traditions, the language applies even-handedly to both prosecution and defense. This approach was adopted in the Navy trials conducted on Guam after WWII, considered by historians who have examined them to be the fairest of that era. Fully half the requests for Guam hearsay admission originated with the defense. Presumably many witnesses of value to Guantanamo defense teams would be unwilling to travel there fear of being seized and detained themselves. So the ability to introduce statements remotely could be helpful to the defense.

§ 949b prohibits improper influencing of a commission, judge, reviewing authority, or counsel.

Comment: Although the article contains no punitive provisions for its violation, persons subject to the UCMJ could possibly be subject to prosecution for its violation under Article 92 (disobeying a general order — this would apply based on the statutory provision being incorporated into subsequent military commission regulations) or one of the "general articles:" Article 133 (conduct unbecoming an officer) or 134 (conduct prejudicial to good order and discipline).

§ 949c defines duties of trial and defense counsel, and specifically articulates criteria for civilian representatives, including U.S. citizenship, membership in a U.S. bar, eligibility for at least a Secret clearance, and having signed an agreement to comply with all commission ground rules.

Comment: These rules are a marked departure from past war crimes prosecutions. Defendants traditionally have had the right to be defended by counsel of their own nationality; in most cases this representation was underwritten by trying nation. Given the substantial distrust most commission defendants likely harbor towards the United States, ability to select trusted counsel seems essential to a fair trial.

§ 949d allows the military judge to conduct hearings on legal matters without the trial panel, permits closure of the trial to the public for safety or security reasons, and allows exclusion of a disruptive accused. The government can limit the accused's access to classified information and protect sources and methods from disclosure.

Comment: Most of this section simply conforms military commission procedure to that of courts-martial. The accused does now get to see all evidence that the trial panel does, rectifying a major injustice in the original rules. But the ability to withhold source data might in practice deny the accused the ability to help his attorneys contest the validity of evidence against him. The ability to conceal source data may also be abused to avoid disclosure of interrogation methods and degree of coercion involved, thus precluding meaningful determination of its reliability. These rules do not necessarily preclude a fair trial, but justice will be at the mercy of good faith conduct by both the prosecution and trial judge.

§ 949f allows the trial judge to decide challenges for cause and gives each side one preemptory challenge.

Comment: This brings commission procedure in line with courts-martial and is a big improvement over original rules which lacked preemptory challenges and required challenges for cause to be decided by the convening authority who had personally approved the panel.

§ 949i applies UCMJ language about pleas to the military commission.

Comment: This is potentially significant because unlike U.S. civilian courts, courts-martial cannot accept a guilty plea if the accused fails to admit every element of the offense. Proceedings against Abu Ghraib defendant Lyndie England were disrupted by this concern.

§ 949j states that the defense "shall have a reasonable opportunity to obtain witnesses and other evidence . . . ." and provides for discovery by the defense and an obligation for the prosecution to disclose exculpatory evidence. This is tempered by the authority for the prosecution to seek the judge to authorize substitutions for classified information.

Comment: This section gives reason for significant concern. UCMJ article 46, by comparison, gives court-martial accused "equal opportunity to obtain witnesses and other evidence," not "reasonable." This section can also be read to mean that the prosecution may withhold some classified information even from defense attorneys who have security clearances. And it clearly states that some relevant information can be withheld from the accused themselves as long as it is not given to the trial panel. This section calls into question whether the defense will be able to learn enough about classified evidence's pedigree to meaningfully challenge its reliability.

§ 949m requires the same votes as for courts-martial: 2/3 for conviction and routine sentencing, ¾ to sentence to more than ten years confinement, unanimous for conviction in a capital case and for the death sentence.

Subchapter V — Sentences

§ 949t authorizes the President or Secretary of Defense to prescribe maximum punishments for offenses.

Comment: This is consistent with the UCMJ, but potentially subject to abuse since there is no constraint on what limits, other than death, can be put on even minor offenses.

§ 949u allows sentences to be served in facilities under military or federal facilities, as well as those under the control of "its allies, or which the United States may be allowed to use."

Comments: The idea that convicted individuals might be allowed to serve sentences in their home countries (e.g., Australian David Hicks) could be viewed as positive, but the term "allies" is never defined in the bill and the phrase "which the United States may be allowed to use" seems hopelessly ambiguous. Some convicted individuals could be transferred to foreign prisons failing to meet international standards for humane treatment. The MCA also never states what happens to individuals who complete their sentences — must they be released or can they be returned to indefinite preventative detention?

Subchapter VI — Post-Trial Procedure and Review of Military Commissions

§ 950b — e provide post-trial review by the convening authority and initial appeal rules essentially the same as that provided in courts-martial.

§ 950f creates a first tier appellate review consisting of a panel of at least three appellate military judges called the "Court of Military Commission Review." The panel is limited to reviewing matters of law.

Comments: This is generally consistent with UCMJ procedure except that courts-martial review includes authority to "weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact." (10 U.S.C. § 866(c)). The first level of appellate court-martial review was originally called the "Court[s] of Military Review;" hence the logical origin of the "Court of Military Commission Review." (They have subsequently been renamed as the "Court[s] of Criminal Appeals.") As the first level of a two-tiered appellate process, this new review panel should not be confused with the single review panel previously established by DOD. (See Military Commission Instruction No. 9, Oct. 11, 2005 for details of the superseded provisions).

§ 950g provides for appeal from the Court of Military Commission Review (CMCR) to the U.S. Court of Appeals for the District of Columbia Circuit (or directly to the D.C. Circuit if an accused waives the right to CMCR review). Such review is limited generally to questions of law, and specifically to whether the result was consistent with the MCA and "to the extent applicable, the Constitution and the laws of the United States." The Supreme Court is then authorized to review D.C. Circuit final judgments by writ of certiorari.

Comment: The substitution of the D.C. Circuit for the Court of Appeals for the Armed Forces (CAAF), established by the UCMJ as the second tier review of courts-martial convictions, is curious. The narrow limitations on the scope of issues allowed to be considered on appeal, if upheld on the almost inevitable judicial challenge, will leave substantial grounds for perceiving the military commission process to be unfair.

§ 950h calls for government provision of appellate counsel at no cost to the defense at each level of review, and also allows the accused to be represented by civilian counsel.

Comment: This section requires civilian appellate counsel to meet the same restrictions imposed on trial counsel, and may constrain defendants' ability to obtain experienced appellate practitioners. Requiring clearances for all counsel seems unnecessary given that appeals are currently limited to questions of law. Defendants would need one lawyer with an appropriate clearance when there are classified portions of the trial record, but should logically be able to call upon any qualified attorney to present arguments of law.

§ 950j establishes the finality of military commission judgments, subject only to the appellate procedures provided by the MCA. It states that no "court, justice, or judge" has jurisdiction to hear any other claim related to military commissions, including any pending at the time of MCA enactment.

Comment: This comprehensive effort to strip federal courts over all collateral jurisdiction over military commissions is obviously one of the most controversial provisions of the MCA. It is a clear departure from past practice — both courts-martial and military commissions have historically been open to collateral review. Post 9/11 indefinite detentions and military commission trials raise unprecedented issues of law that logically beg judicial resolution.

Subchapter VII — Punitive Matters

§ 950p proclaims that the MCA simply codifies existing offenses "traditionally" triable by military commissions and therefore does "not preclude trial for crimes that occurred before the date of enactment." §§ 950q — v then provide definitions of terms such as "principals" and "accessory after the fact," as well as enumerating 28 specific offenses ranging from "murder of protected persons" to "conspiracy."

Comments: This is probably the most immediate area of concern among MCA provisions relating directly to trials. As the statute implicitly acknowledges, newly defined crimes can only lawfully be prosecuted if committed after MCA enactment. To try individuals for conduct that took place previously, the offenses had to already be crimes under the law of war per the internationally accepted principle of "nullum crimen sine lege." But this is not the case for several of the offenses defined in the MCA:

§ 950u makes "solicitation" to commit any other offense defined in the MCA an offense triable by military commission. But the Anglo-American conceptualization of inchoate offenses is not shared by many other legal systems, and there is no clear substantive precedent for holding this to constitute a law of war offense.

§ 950v. (b)(28) makes conspiracy to commit any other offense defined in the MCA triable by military commission. While international tribunals recognize participation in a joint criminal enterprise as creating liability for all participants, they do not recognize the Anglo-American inchoate crime of conspiracy, i.e., entering into an agreement to do an illegal act, as constituting a crime per se. This issue was specifically addressed by the Nuremberg tribunal which found conspiracy to commit a crime against peace, that is planning to wage aggressive war, to be the only form of "conspiracy" that could be prosecuted. Conspiracy to commit a war crime was rejected as a punishable offense. This article seems to have been crafted to address some of this concern because it does require "an overt act to effect the object of the conspiracy." But under international law it is the overt act that should be charged, not the "conspiracy." It's likely some detainees could be lawfully prosecuted for conspiracy offenses in Article III courts applying federal criminal law, but these are not offenses under the law of war.

§ 950v. (b)(25) makes "providing material support for terrorism" an offense triable by military commission. Historically the law of war has dealt with the conduct of belligerents, not supporters. This offense seems to lack validity under the law of war. It is also unnecessary; by international agreement terrorism has been treated as an ordinary crime and the U.S. federal code already defines most terrorist acts, including providing material support, as felonies. This conduct can be tried in a regular federal court, but unless the conduct was committed after the date of MCA enactment, should not be triable by a military commission. This is an issue of particular concern because at least one defendant is now charged only with this offense.

There are problematic aspects with several other MCA provisions in this part of the bill:

§ 950v.(a)(2) adopts the term "protected person" from the 1949 Geneva Conventions which is then used in several subsequent punitive articles. Since the Administration explicitly denies the Conventions' applicability to what it calls "the war on terror," it is not clear that this definition is part of applicable international law in this conflict. If the United States is not granting the protections accorded by the Conventions, shouldn't it be estopped from using them as the basis of criminal charges? (The conduct at issue, e.g., intentionally killing non-combatants, does logically constitute war crimes, but should be defined with respect to the customary law of war rather than by reference to treaties the government holds inapplicable).

§ 950v.(a)(24) makes "terrorism" a crime triable by military commission. Most of the conduct described in this article does violate the law of war but should be defined in traditional terms — e.g., conducting indiscriminate attacks, and not defined by the term "terrorism" which is part of civilian criminal law parlance.

§ 950v.(a)(27) addresses spying, which is historically a crime punished by military tribunals, but fails to apply the customary law of war requirement that the individual must be captured before returning to their own lines. Unlike the federal crime of espionage, under the law of war once a "spy" rejoins their own forces, liability for the offense is permanently terminated.

§ 950w permits military commissions to try for perjury, obstruction and justice, and contempt.

Comment: It is unclear just who can be tried for these offenses. The MCA does use the term "anyone" in conjunction with contempt, but contains no similar guidance with respect to perjury and obstruction of justice. Since § 948c. previously made only unlawful enemy combatants liable to commission jurisdiction, the ambiguity in § 950w should logically be construed in a manner consistent with that express limitation.

Section 4 of the MCA makes technical conforming amendments to the UCMJ. The one substantive change is language added to UCMJ article 81 making conspiracy to commit a war crime a violation of that statute as well.

Section 5 declares that neither the Geneva Conventions nor the Additional Protocols (to which the United States is not a party) can be invoked as a source of rights in civil actions in U.S. courts if the U.S. or anyone affiliated with the government is a party.

Comments: Given that the U.S. denies the applicability of these agreements to the current conflict anyway, and the Supreme Court has held that only a single provision, CA3 is applicable, this measure is largely symbolic as far as the current conflict goes. Obviously intended to cabin U.S. government liability, this provision would perversely also bar American servicepersons from suing foreign officials for mistreating them.

Section 6 addresses several aspects of the Geneva Convention under U.S. law. It amends the War Crimes Act (WCA) (18 U.S.C. 2441) by retroactively replacing the existing generic codification of CA3 violations with an explicitly defined set of offenses. It gives the President authority to interpret the meaning of the Conventions and also to promulgate additional Convention violations as criminal offenses via Executive Order published in the Federal Register.

Comments: This section is a curious mixture of advances and retreats with respect to defining war crimes under federal law. Each of the four Geneva Conventions has an article which define which of its provisions constitute "grave breaches" if violated. According to the Conventions, state parties are obligated to exercise universal jurisdiction over these grave breaches and to suppress all other violations. The U.S. has fallen well short of its obligations in this respect. Four decades after ratifying the treaties, the U.S. finally enacted the WCA in 1996, asserting jurisdiction over grave breaches but only if either perpetrator or victim are American. This approach fails both to meet the universal jurisdiction mandate for grave breaches or to meet the treaty obligation to suppress other breaches. Congress amended the WCA the next year to add CA3 violations as punishable offenses, but provided no specificity as to what constituted a violation.

On the positive side, the MCA now details conduct prosecutable as CA3 violations, and the President is authorized to expand the coverage of other Geneva violations that can be punished via Executive Order. On the negative side the retroactive narrowing of the scope of criminal CA3 violations was obviously crafted to exempt government officials from prosecution for detainee treatment that would fall within any reasonable person's interpretation of cruel, inhuman or degrading treatment proscribed by CA3. It also excludes denial of a fair trial from the list of defined offenses, so participants in the military commission process are protected as well. On the incomprehensible side, the MCA addresses "grave breaches" of CA3 although there is no such thing under the Conventions, and bars use of foreign/international legal materials in interpreting CA3 violations. The last point is probably largely symbolic; since the statute now spells out in detail the conduct that can be punished there is less need to consult persuasive authority than if the statute simply makes violation of the somewhat ambiguous CA3 language.

Section 6.(b)(5) declares that although Congress has substantially narrowed the scope of CA3 violations that can be prosecuted in federal courts, this does not define the limits of U.S. obligations under CA3. Section 6.(c) categorically declares that the U.S. government is prohibited from inflicting "cruel, inhuman, or degrading treatment or punishment" on any person, regardless of nationality or location. This treatment is then defined in terms of conduct that would be proscribed under the Fifth, Eighth, and Fourteenth Amendments, and the President is called upon to ensure compliance via administrative rules and procedures. Once this is done, U.S. service personnel and civilian defense contractors could likely be prosecuted for violations under UCMJ article 92, although CIA personnel probably could not be. Unfortunately it appears that the Department of Justice takes a very narrow view of what conduct violates these amendments so it remains to be seen what standard will ultimately be applied.

Section 7 amends the federal habeas statute (28 U.S. 2241), previously amended by the DTA, to more clearly strip jurisdiction over individuals determined to be, or awaiting determination to be, enemy combatants, leaving intact only the limited D.C. Circuit Court of Appeals review provided for by the DTA.

Section 8 amends DTA language to require the government to provide lawyers to federal officials under investigation or criminally charged for conduct involving suspected terrorists that was authorized by direction from higher authority.

Sections 9 and 10 make technical amendments to the DTA to bring its language into conformance with the MCA.

Conclusion: The MCA restores much of the historic commonality between courts-martial and military commissions and repudiates a number of the Bush Administration's efforts to adopt rules biased against defendants. It is possible that a fair trial could be conducted under this statute, but only if the government refrained from charging those offenses not clearly supported by the law of war, the prosecution fully discloses all evidence and provides sufficient details about the sources to permit accurate assessment of its validity, no coerced testimony is admitted, and any hearsay is carefully scrutinized for reliability and lack of prejudice. Given that the government has already rushed to press post-MCA charges apparently unsupported by the law of war, the MCA's limitations on both habeas and direct review seem to further reduce the likelihood that justice will be achieved by the Guantanamo trials. --------]]> The United Nations Convention on the Rights of Persons with Disabilities tag:jurist.org,2007:/annotations//8.30753 2007-10-06T01:33:00Z 2010-06-25T02:07:10Z Bernard Hibbitts Temple Political & Civil Rights Law Review 121 (Fall 2005). JURIST Guest Analyst Katherine Guernsey is Director and Legal Counsel of Lord, Guernsey and Associates, LLC; she participated in all sessions of the treaty negotiations, providing legal counsel to governmental and non-governmental delegations.

On March 30, 2007, the United Nations Convention on the Rights of Persons with Disabilities (CPRD) was opened for signature. Adopted by the UN General Assembly in December 2006, the CPRD became one of nine core international human rights conventions, and as such is of great relevance for anyone working or studying in the field of human rights. Though it is beyond the scope of this note to examine more nuanced issues of interpretation, it is hoped that it will nevertheless assist those interested in exploring such questions of interpretation in the future.

I. Background

It is estimated that there are at least 650 million people with disabilities in the world, or at least ten percent of any given population, with at least eighty percent living in developing countries. In many societies people with disabilities are among the most marginalized, subject to wide-spread discrimination and abuse of their human rights. As a result, people with disabilities are placed at risk of poverty, which in turn exacerbates their marginalization and segregation. Fewer than fifty countries currently have disability-specific anti-discrimination legislation, meaning there are few domestic mechanisms in place to effectively address this situation.

Despite the dearth of domestic legislation, there are a variety of core international human rights conventions and disability-specific human rights instruments that pre-date the drafting of the CRPD. Given these existing instuments, it is reasonable to ask why a specific convention addressing the human rights of persons with disabilities is needed. Although people with disabilities are subjects of the existing human rights instruments, and as such are just as entitled to enjoy the human rights articulated in them as other people, the human rights reality faced by most people with disabilities falls far short of these standards. Not only have the existing human rights standards not been enjoyed by people with disabilities, but the international human rights monitoring mechanisms have typically failed to apply these standards to people with disabilities.

Governments generally do not reference the situation of people with disabilities in their reports to the treaty monitoring bodies, and the treaty monitoring bodies have historically not pressed governments for this information, leading some to characterize people with disabilities as effectively "invisible" in the international human rights system. This situation is compounded by the lack of legally binding international standards addressing human rights in the disability context. Among the core human rights conventions only the Convention on the Rights of the Child expressly references disability, and the UN Standard Rules, though reasonably comprehensive in its coverage of disability issues, is not legally binding.

In addition to these factors, another issue contributed to calls for the adoption of a legally binding instrument focusing on the human rights of people with disabilities. In 2000, world leaders adopted the Millennium Development Goals (MDGs), which set forth internationally agreed upon development targets in areas such as poverty, health, education and environmental sustainability. In time though, it became clear that the MDGs would be unattainable as long as the human rights of people with disabilities were ignored and they continued to be marginalized from society. Concerns over the attainability of the MDGs in the absence of meaningful inclusion of people with disabilities in societies led many developing countries to be at the forefront of the process to develop the CRPD.

II. The drafing and adoption process

A. Mechanics of drafting the CPRD

In response to this need, the CRPD drafting process was initiated in December 2001, when the government of Mexico successfully sponsored a General Assembly resolution calling for the establishment of an Ad Hoc Committee (AHC) to:
consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development.
As a temporary sub-body of the General Assembly, the AHC met for a total of eight sessions at UN Headquarters in New York between July 2002 and December 2006, with each session lasting approximately two weeks. In addition, a temporary sub-body of the AHC, known as the Working Group, met for two weeks in January 2004, for the purpose of drafting the "Working Group Text" that later formed the basis for negotiations. Subsequent AHC sessions provided opportunities for delegations to read, consider, and respond to the draft text, as well as propose amendments. Amendments for which there was sufficient support were later synthesized in two further texts, the "Chair's Text" (issued in October 2005) and the "Working Text" (issued in February 2006).

In August 2006, the AHC reached final agreement on the content of the draft text, and forwarded the consensus text to a technical Drafting Committee: another temporary sub-body of the AHC charged with ensuring linguistic concordance between the six official UN languages, and internal consistency in use of concepts and terms. The final product of this Drafting Committee was accepted by consensus by the AHC at a brief "resume" meeting of its Eighth Session on December 5, 2006, and immediately transmitted to the General Assembly (GA). The GA unanimously adopted the CRPD on December 13, 2006, making it, as then UN Secretary General Kofi Annan noted, the most rapidly negotiated treaty of its type in the history of international law. The Convention was opened for signature at UN Headquarters in New York on March 30, 2007, where over 80 countries and one regional integration organization (the EU) signed and one country (Jamaica) ratified, setting a record for the most signatures for any UN human rights convention on its opening day. The CRPD will enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession. It is widely expected that entry into force will occur within the next year.

B. Unique aspects of the negotiations

Not only was the drafting process unique in its brevity and for the hosting of the negotiations by the General Assembly, but the negotiations are particularly notable for their inclusive nature. The CRPD negotiations were arguably more inclusive of civil society than any other UN process to date, with disabled people's organizations (DPOs), other non-governmental organizations (NGOs), inter-governmental organizations (IGOs), and also national human rights institutions (NHRIs) all participating in the convention development process. Not only were representatives of these groups entitled to observe all sessions of the AHC, but they were also entitled to speak, to receive documents, and to freely interact with government delegations. This process was further aided by the introduction of a specific accreditation process for the AHC, designed to facilitate the participation of groups not possessing more formal consultative status with the UN.

During the Working Group meeting the inclusion of non-governmental representatives was taken to an unprecedented level, with one NHRI and twelve DPO representatives being granted full membership in the Group, each with rights of participation equal to those of the government representatives. This level of participation facilitated access to the wealth of experience and expertise in the international disability community, and also respected the disability community's principle of "Nothing About us Without Us."

III. Understanding the Convention

A. Guiding Principles

The CRPD is unusual among human rights conventions for its inclusion of an Article specifically addressing the guiding principles of the Convention. Typically such principles must be 'divined' from the text by the appropriate body mandated to interpret and monitor implementation of the instrument. However, drawing upon other fields of international law (especially the environmental field, where such provisions are common) and in deference to the need to ensure accessibility of the text, the AHC chose to include a specific article outlining the applicable principles. The principles as expressed in Article 3 are:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

As with the other articles of general application (discussed below), Article 3 is to be applied to the text as a whole, and its principles should be adhered to in both the interpretation and implementation of the CRPD.

B. Overview of structure and content of the CRPD

The first structural feature of note is the extensive use of article headings, which is an unusual feature in UN human rights conventions. Though the headings were initially included to assist the drafters in navigating the draft text, it was decided to retain them in order to make the CRPD more readily accessible to all users.

Though the CRPD does not explicitly do this, its provisions can be divided into a number of sections:
  • Preamble — Consistent with other human rights conventions, the CRPD begins with a non-legally binding preamble, which sets forth the rationale for the Convention. In particular it highlights the historic marginalization and discrimination faced by people with disabilities, the nature of disability as an evolving concept, and also the need to be attentive to the situation of women, children, and indigenous persons with disabilities.

  • Introductory articles (Articles 1 & 2) — Again, drawing on prevailing practice in the international environmental law field, the CRPD includes a "purpose" article (Article 1), in addition to an article providing definitions (Article 2). Though some AHC delegations suggested that Article 1 was superfluous in light of the Convention's title and Preamble, the decision was made to retain the article in order to prevent any ambiguity in interpretation. Article 1 also provides a non-exhaustive list of people with disabilities covered by the CRPD's provisions. Article 2 sets forth a number of important definitions, including "discrimination on the basis of disability," "reasonable accommodation," and "universal design." It should be noted that neither "disability" nor "persons with disabilities" is defined anywhere in the Convention, in deference to the evolving understanding (as noted in Preambular Para (e)) of disability as an interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in societies on an equal basis with others.

  • Articles of general application (Articles 3-9) — These articles address concepts and issues relevant to the interpretation and implementation of the CRPD. Consequently, all other articles must be read and understood in light of Articles 3-9. As discussed above, Article 3 elaborates general principles. Article 4 addresses the general obligations of States Parties, and includes such requirements as the consultation and active involvement of people with disabilities and their representative organizations in the development and implementation of legislation and policies to implement the CPRD. Article 4 also addresses the progressive realization of economic, social and cultural rights and, consistent with international law, highlights the obligation of States Parties to immediately implement those economic, social and cultural rights provisions that are capable of immediate implementation.

    Article 5 addresses equality and non-discrimination, and the need to ensure that people are not subjected to discrimination on the basis of disability. When read in conjunction with the definition of "discrimination on the basis of disability" in Article 2, Article 5 prohibits disability-based discrimination, regardless of whether the person discriminated against self-identifies as, or is considered by others to be, a disabled person. In this regard the CRPD approaches discrimination on the basis of disability in a manner similar to approaches often seen regarding discrimination on the basis of race or ethnicity, ie. it views "disability" more as a social construct (like race), rather than an inherent characteristic.
    Articles 6 and 7 address two sub-populations of people with disabilities: women with disabilities and children with disabilities. Given the multiple discrimination faced by these groups, the drafters decided to both mainstream gender and children's issues, as well as highlight these groups in separate articles. With respect to children with disabilities, the inclusion of a separate article also reflects the drafters' desire to provide an updated and more principled approach to the issues of children with disabilities than that adopted in Article 23 of the Convention on the Rights of the Child.

    Articles 8 and 9 highlight issues around a number of societal barriers to the full and effective inclusion of people with disabilities in societies, specifically attitudinal, physical, informational and communication barriers. Article 8 obligates States Parties to engage in awareness-raising measures, especially with regard to combating stereotypes, prejudices and harmful practices, and promoting respect for the human rights of people with disabilities. Article 9 explores issues of accessibility both in terms of steps to be taken and areas of focus (such as transportation, the physical environment, information etc.). It should be noted that during the negotiations some delegations sought to identify Article 9 as subject to progressive realization, but it was quickly pointed out that its provisions are equally relevant to the implementation and enjoyment of civil and political rights, as well as economic, social and cultural rights. Thus, questions of application of the principle of progressive realization to Article 9 will likely have to be contextualized according to the nature of the rights implicated in the application of Article 9.

  • Specific Articles (Articles 10-30) — Too many to explore in full here, Articles 10-30 address a wide variety of human rights issues. In conjunction with prior articles, Articles 10-30 attempt to elaborate human rights in the context of disability and the experiences of people with disabilities, in order to clarify the obligations of governments with regard to the human rights of people with disabilities. In this regard the articles address the full range of human rights (encompassing both civil and political rights as well as economic, social and cultural rights), and challenge traditional notions of disability as purely a 'health' or 'social welfare' issue. Of particular note is Article 12, which addresses issues of legal capacity. Breaking away from the traditional domestic approach of denying legal capacity to people with disabilities, Article 12 recognizes "that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life," and obligates States Parties to provide support that may be needed to enable people with disabilities to exercise that capacity. Theoretically the support provided could exist on a continuum, from no support to full support depending upon an individual's circumstances, and oversight of this support (in order to prevent abuses) would similarly be proportional to the degree to which support measures "affect the person's rights and interests." Though the approach of Article 12 differs markedly from that taken in many domestic contexts, the Ad Hoc Committee agreed to adopt Article 12 with the understanding that failure to recognize the legal capacity of people with disabilities has historically deprived many people with disabilities from full enjoyment of their human rights.

  • Implementation and monitoring measures (Articles 31-40) — Again borrowing from international environmental law, Articles 31 and 32 address measures relevant to effective implementation of the CRPD. Article 31 addresses the collection of data and statistics — not with regard to monitoring of implementation of the CRPD, but with regard to information that will be needed in order for governments to "formulate and implement policies to give effect to" the Convention. Article 32 addresses "international cooperation," which is broadly understood to encompass not only financial assistance but also the international sharing of knowledge and experiences. Although international cooperation is a concept often referenced in human rights conventions, Article 32 represents the first time the concept has been elaborated so thoroughly. Article 40 represents the first time that a conference of States Parties has been established with regard to a UN human rights convention. Though a short article, it is anticipated that the conference will draw on the experiences of conferences of States Parties utilized in the environmental and weapons control arenas, where such conferences have been used to great effect to facilitate international cooperation and interaction between governmental, non-governmental, and inter-governmental actors.

    Article 33 addresses national level monitoring of implementation of the CRPD. It is widely anticipated that national human rights institutions, which by definition under the Paris Principles must be "independent," will have a critical role to play in achieving the national level monitoring envisioned in Article 33. Articles 34 — 39 address international level monitoring, and call for the establishment of a committee of experts (including people with disabilities) who will be mandated to consider reports of States Parties and interpret the provisions of the CRPD. Pursuant to the Optional Protocol to the CRPD (which was adopted and opened for signature at the same time as the CRPD), the committee will also be mandated to receive communications (complaints) from individuals and groups alleging violations by CRPD States Parties who are also parties to the Optional Protocol.

  • Final provisions (Articles 41-50) — Articles 41- 50 contain final provisions typical of a human rights convention, and address such issues as depository, signature, consent to be bound, entry into force, and reservations. Notable though is the inclusion of Article 44, which allows "regional integration organizations" to formally consent to be bound by the CRPD to the extent of their competence. Thus, Article 44 facilitates the ability of entities such as the European Union (EU) to be bound by provisions of the CRPD, and indeed the EU (acting as the "European Community") was one of the first to sign the Convention.
V. Conclusions

Though it is acknowledged that the CRPD cannot be a panacea for the problems faced by people with disabilities around the world, it is hoped that it will nevertheless provide an additional tool for people with disabilities and governments to use in ensuring the full enjoyment of human rights by people with disabilities on an equal basis with others. Specifically, it is hoped that the CRPD will :
  • Increase the visibility of persons with disabilities, both within the UN human rights system and in society more generally

  • Clarify the human rights obligations of governments to persons with disabilities, and ensure that governments who become States Parties to the convention make legislative and programmatic changes at the national level to implement their legal obligations under the convention

  • Encourage existing human rights monitoring bodies to pay attention to disability issues when they review compliance of governments with the other core human rights conventions

  • Encourage other bodies within the UN system (such as UNICEF, UNIFEM, WHO, UNESCO, and others) to pay attention to disability issues in their work

  • Establish systems for comprehensively monitoring the human rights situation of persons with disabilities around the world

  • Establish systems for international cooperation, through which governments, disability organizations and other actors can share knowledge and ideas and work together to improve the lives of persons with disabilities.
The true impact of the CPRD remains to be seen. As former Secretary of the UN, Kofi Annan, stated "[o]nce the Convention is adopted, signed and ratified, it will have an impact on national laws that will transform how people with disabilities can live their lives. It will offer a way forward to ensure that those with disabilities enjoy the same human rights as everyone else -- in education, employment, access to buildings and other facilities, and access to justice." However, "[i]t will not happen overnight. Much work remains to be done to produce the results that are aspired from the Convention." --------]]> The United Nations Convention on the Rights of Persons with Disabilities tag:jurist.org,2007:/annotations//8.30752 2007-10-05T15:01:00Z 2010-06-25T02:07:09Z JURIST Staff Temple Political & Civil Rights Law Review 121 (Fall 2005) and a 2006 graduate of the University of Cincinnati College of Law. JURIST Guest Analyst Katherine Guernsey is an international lawyer and adjunct professor at the American University School of International Service; she participated in all sessions of the treaty negotiations, providing legal counsel to governmental and non-governmental delegations.

On March 30, 2007, the United Nations Convention on the Rights of Persons with Disabilities (CPRD) was opened for signature. Adopted by the UN General Assembly in December 2006, the CPRD became one of nine core international human rights conventions, and as such is of great relevance for anyone working or studying in the field of human rights. Though it is beyond the scope of this analysis to examine more nuanced issues of interpretation, we hope it will nevertheless assist those interested in exploring such questions of interpretation in the future.

I. Background

It is estimated that there are at least 650 million people with disabilities in the world, or at least ten percent of any given population, with at least eighty percent living in developing countries. [1] In many societies people with disabilities are among the most marginalized, subject to wide-spread discrimination and abuse of their human rights. As a result, people with disabilities are placed at risk of poverty, which in turn exacerbates their marginalization and segregation. [2] Fewer than fifty countries currently have disability-specific anti-discrimination legislation, meaning there are few domestic mechanisms in place to effectively address this situation.

Despite the dearth of domestic legislation, there are a variety of core international human rights conventions [3] and disability-specific human rights instruments [4] that pre-date the drafting of the CRPD. Given these existing instruments, it is reasonable to ask why a specific convention addressing the human rights of persons with disabilities is needed. Although people with disabilities are subjects of the existing human rights instruments, and as such are just as entitled to enjoy the human rights articulated in them as other people, the human rights reality faced by most people with disabilities falls far short of these standards. Not only have the existing human rights standards not been enjoyed by people with disabilities, but the international human rights monitoring mechanisms have typically failed to apply these standards to people with disabilities. [5] Governments generally do not reference the situation of people with disabilities in their reports to the treaty monitoring bodies, and the treaty monitoring bodies have historically not pressed governments for this information, leading some to characterize people with disabilities as effectively "invisible" in the international human rights system. [6] This situation is compounded by the lack of legally binding international standards addressing human rights in the disability context. Among the core human rights conventions only the Convention on the Rights of the Child expressly references disability, [7] and the UN Standard Rules, though reasonably comprehensive in its coverage of disability issues, is not legally binding.

In addition to these factors, another issue contributed to calls for the adoption of a legally binding instrument focusing on the human rights of people with disabilities. In 2000, world leaders adopted the Millennium Development Goals (MDGs), which set forth internationally agreed upon development targets in areas such as poverty, health, education and environmental sustainability. [8] In time though, it became clear that the MDGs would be unattainable as long as the human rights of people with disabilities were ignored and they continued to be marginalized from society. [9] Concerns over the attainability of the MDGs in the absence of meaningful inclusion of people with disabilities in societies led many developing countries to be at the forefront of the process to develop the CRPD. [10]

II. The drafting and adoption process

A. Mechanics of drafting the CPRD

In response to this need, the CRPD drafting process was initiated in December 2001, when the government of Mexico successfully sponsored a General Assembly resolution calling for the establishment of an Ad Hoc Committee (AHC) to:
consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination and taking into account the recommendations of the Commission on Human Rights and the Commission for Social Development. [11]
As a temporary sub-body of the General Assembly, the AHC met for a total of eight sessions at UN Headquarters in New York between July 2002 and December 2006, with each session lasting approximately two weeks. [12] In addition, a temporary sub-body of the AHC, known as the Working Group, met for two weeks in January 2004, for the purpose of drafting the "Working Group Text" that later formed the basis for negotiations. Subsequent AHC sessions provided opportunities for delegations to read, consider, and respond to the draft text, as well as propose amendments. Amendments for which there was sufficient support were later synthesized in two further texts, the "Chair's Text" (issued in October 2005) and the "Working Text" (issued in February 2006).

In August 2006, the AHC reached final agreement on the content of the draft text, and forwarded the consensus text to a technical Drafting Committee: another temporary sub-body of the AHC charged with ensuring linguistic concordance between the six official UN languages, and internal consistency in use of concepts and terms. The final product of this Drafting Committee was accepted by consensus by the AHC at a brief "resume" meeting of its Eighth Session on December 5, 2006, and immediately transmitted to the General Assembly (GA). The GA unanimously adopted the CRPD on December 13, 2006, making it, as then UN Secretary General Kofi Annan noted, the most rapidly negotiated treaty of its type in the history of international law. [13] The Convention was opened for signature at UN Headquarters in New York on March 30, 2007, where over 80 countries and one regional integration organization (the EU) signed and one country (Jamaica) ratified, setting a record for the most signatures for any UN human rights convention on its opening day. The CRPD will enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession. It is widely expected that entry into force will occur within the next year.

B. Unique aspects of the negotiations

Not only was the drafting process unique in its brevity and for the hosting of the negotiations by the General Assembly, [14] but the negotiations are particularly notable for their inclusive nature. The CRPD negotiations were arguably more inclusive of civil society than any other UN process to date, with disabled people's organizations (DPOs), other non-governmental organizations (NGOs), inter-governmental organizations (IGOs), and also national human rights institutions (NHRIs) all participating in the convention development process. Not only were representatives of these groups entitled to observe all sessions of the AHC, but they were also entitled to speak, to receive documents, and to freely interact with government delegations. [15] This process was further aided by the introduction of a specific accreditation process for the AHC, designed to facilitate the participation of groups not possessing more formal consultative status with the UN. [16]

During the Working Group meeting the inclusion of non-governmental representatives was taken to an unprecedented level, with one NHRI and twelve DPO representatives being granted full membership in the Group, each with rights of participation equal to those of the government representatives. This level of participation facilitated access to the wealth of experience and expertise in the international disability community, and also respected the disability community's principle of "Nothing About us Without Us."

III. Understanding the Convention

A. Guiding Principles

The CRPD is unusual among human rights conventions for its inclusion of an Article specifically addressing the guiding principles of the Convention. Typically such principles must be 'divined' from the text by the appropriate body mandated to interpret and monitor implementation of the instrument. However, drawing upon other fields of international law (especially the environmental field, where such provisions are common) and in deference to the need to ensure accessibility of the text, the AHC chose to include a specific article outlining the applicable principles. The principles as expressed in Article 3 are:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

As with the other articles of general application (discussed below), Article 3 is to be applied to the text as a whole, and its principles should be adhered to in both the interpretation and implementation of the CRPD.

B. Overview of structure and content of the CRPD

The first structural feature of note is the extensive use of article headings, which is an unusual feature in UN human rights conventions. Though the headings were initially included to assist the drafters in navigating the draft text, it was decided to retain them in order to make the CRPD more readily accessible to all users.

Though the CRPD does not explicitly do this, its provisions can be divided into a number of sections: [17]
  • Preamble — Consistent with other human rights conventions, the CRPD begins with a non-legally binding preamble, which sets forth the rationale for the Convention. In particular it highlights the historic marginalization and discrimination faced by people with disabilities, the nature of disability as an evolving concept, and also the need to be attentive to the situation of women, children, and indigenous persons with disabilities.

  • Introductory articles (Articles 1 & 2) — Again, drawing on prevailing practice in the international environmental law field, the CRPD includes a "purpose" article (Article 1), in addition to an article providing definitions (Article 2). Though some AHC delegations suggested that Article 1 was superfluous in light of the Convention's title and Preamble, the decision was made to retain the article in order to prevent any ambiguity in interpretation. Article 1 also provides a non-exhaustive list of people with disabilities covered by the CRPD's provisions. Article 2 sets forth a number of important definitions, including "discrimination on the basis of disability," "reasonable accommodation," and "universal design." It should be noted that neither "disability" nor "persons with disabilities" is defined anywhere in the Convention, in deference to the evolving understanding (as noted in Preambular Para (e)) of disability as an interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in societies on an equal basis with others.

  • Articles of general application (Articles 3-9) — These articles address concepts and issues relevant to the interpretation and implementation of the CRPD. Consequently, all other articles must be read and understood in light of Articles 3-9. As discussed above, Article 3 elaborates general principles. Article 4 addresses the general obligations of States Parties, and includes such requirements as the consultation and active involvement of people with disabilities and their representative organizations in the development and implementation of legislation and policies to implement the CPRD. [18] Article 4 also addresses the progressive realization of economic, social and cultural rights and, consistent with international law, highlights the obligation of States Parties to immediately implement those economic, social and cultural rights provisions that are capable of immediate implementation.

    Article 5 addresses equality and non-discrimination, and the need to ensure that people are not subjected to discrimination on the basis of disability. When read in conjunction with the definition of "discrimination on the basis of disability" in Article 2, Article 5 prohibits disability-based discrimination, regardless of whether the person discriminated against self-identifies as, or is considered by others to be, a disabled person. In this regard the CRPD approaches discrimination on the basis of disability in a manner similar to approaches often seen regarding discrimination on the basis of race or ethnicity, ie. it views "disability" more as a social construct (like race), rather than an inherent characteristic.

    Articles 6 and 7 address two sub-populations of people with disabilities: women with disabilities and children with disabilities. Given the multiple discrimination faced by these groups, the drafters decided to both mainstream gender and children's issues, as well as highlight these groups in separate articles. With respect to children with disabilities, the inclusion of a separate article also reflects the drafters' desire to provide an updated and more principled approach to the issues of children with disabilities than that adopted in Article 23 of the Convention on the Rights of the Child.

    Articles 8 and 9 highlight issues around a number of societal barriers to the full and effective inclusion of people with disabilities in societies, specifically attitudinal, physical, informational and communication barriers. Article 8 obligates States Parties to engage in awareness-raising measures, especially with regard to combating stereotypes, prejudices and harmful practices, and promoting respect for the human rights of people with disabilities. Article 9 explores issues of accessibility both in terms of steps to be taken and areas of focus (such as transportation, the physical environment, information etc.). It should be noted that during the negotiations some delegations sought to identify Article 9 as subject to progressive realization, but it was quickly pointed out that its provisions are equally relevant to the implementation and enjoyment of civil and political rights, as well as economic, social and cultural rights. Thus, questions of application of the principle of progressive realization to Article 9 will likely have to be contextualized according to the nature of the rights implicated in the application of Article 9.

  • Specific Articles (Articles 10-30) — Too many to explore in full here, Articles 10-30 address a wide variety of human rights issues. In conjunction with prior articles, Articles 10-30 attempt to elaborate human rights in the context of disability and the experiences of people with disabilities, in order to clarify the obligations of governments with regard to the human rights of people with disabilities. In this regard the articles address the full range of human rights (encompassing both civil and political rights as well as economic, social and cultural rights), and challenge traditional notions of disability as purely a 'health' or 'social welfare' issue. Of particular note is Article 12, which addresses issues of legal capacity. Breaking away from the traditional domestic approach of denying legal capacity to people with disabilities, Article 12 recognizes "that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life," and obligates States Parties to provide support that may be needed to enable people with disabilities to exercise that capacity. Theoretically the support provided could exist on a continuum, from no support to full support depending upon an individual's circumstances, and oversight of this support (in order to prevent abuses) would similarly be proportional to the degree to which support measures "affect the person's rights and interests." Though the approach of Article 12 differs markedly from that taken in many domestic contexts, the Ad Hoc Committee agreed to adopt Article 12 with the understanding that failure to recognize the legal capacity of people with disabilities has historically deprived many people with disabilities from full enjoyment of their human rights.

  • Implementation and monitoring measures (Articles 31-40) — Again borrowing from international environmental law, Articles 31 and 32 address measures relevant to effective implementation of the CRPD. Article 31 addresses the collection of data and statistics — not with regard to monitoring of implementation of the CRPD, but with regard to information that will be needed in order for governments to "formulate and implement policies to give effect to" the Convention. Article 32 addresses "international cooperation," which is broadly understood to encompass not only financial assistance but also the international sharing of knowledge and experiences. Although international cooperation is a concept often referenced in human rights conventions, Article 32 represents the first time the concept has been elaborated so thoroughly. Article 40 represents the first time that a conference of States Parties has been established with regard to a UN human rights convention. Though a short article, it is anticipated that the conference will draw on the experiences of conferences of States Parties utilized in the environmental and weapons control arenas, where such conferences have been used to great effect to facilitate international cooperation and interaction between governmental, non-governmental, and inter-governmental actors.

    Article 33 addresses national level monitoring of implementation of the CRPD. It is widely anticipated that national human rights institutions, which by definition under the Paris Principles must be "independent," will have a critical role to play in achieving the national level monitoring envisioned in Article 33. Articles 34 — 39 address international level monitoring, and call for the establishment of a committee of experts (including people with disabilities) who will be mandated to consider reports of States Parties and interpret the provisions of the CRPD. Pursuant to the Optional Protocol to the CRPD (which was adopted and opened for signature at the same time as the CRPD), the committee will also be mandated to receive communications (complaints) from individuals and groups alleging violations by CRPD States Parties who are also parties to the Optional Protocol.

  • Final provisions (Articles 41-50) — Articles 41- 50 contain final provisions typical of a human rights convention, and address such issues as depository, signature, consent to be bound, entry into force, and reservations. Notable though is the inclusion of Article 44, which allows "regional integration organizations" to formally consent to be bound by the CRPD to the extent of their competence. Thus, Article 44 facilitates the ability of entities such as the European Union (EU) to be bound by provisions of the CRPD, and indeed the EU (acting as the "European Community") was one of the first to sign the Convention.
V. Conclusions

Though it is acknowledged that the CRPD cannot be a panacea for the problems faced by people with disabilities around the world, it is hoped that it will nevertheless provide an additional tool for people with disabilities and governments to use in ensuring the full enjoyment of human rights by people with disabilities on an equal basis with others. Specifically, it is hoped that the CRPD will: [19]
  • Increase the visibility of persons with disabilities, both within the UN human rights system and in society more generally

  • Clarify the human rights obligations of governments to persons with disabilities, and ensure that governments who become States Parties to the convention make legislative and programmatic changes at the national level to implement their legal obligations under the convention

  • Encourage existing human rights monitoring bodies to pay attention to disability issues when they review compliance of governments with the other core human rights conventions

  • Encourage other bodies within the UN system (such as UNICEF, UNIFEM, WHO, UNESCO, and others) to pay attention to disability issues in their work

  • Establish systems for comprehensively monitoring the human rights situation of persons with disabilities around the world

  • Establish systems for international cooperation, through which governments, disability organizations and other actors can share knowledge and ideas and work together to improve the lives of persons with disabilities.
The true impact of the CPRD remains to be seen. As former Secretary of the UN, Kofi Annan, stated "[o]nce the Convention is adopted, signed and ratified, it will have an impact on national laws that will transform how people with disabilities can live their lives. It will offer a way forward to ensure that those with disabilities enjoy the same human rights as everyone else -- in education, employment, access to buildings and other facilities, and access to justice." However, "[i]t will not happen overnight. Much work remains to be done to produce the results that are aspired from the Convention." [20]


Notes

1. "Frequently Asked Questions Regarding the Convention on the Rights of Persons with Disabilities," UN Department of Economic and Social Affairs, available: http://www.un.org/esa/socdev/enable/convinfofaq.htm

2. Making Inclusion Operational: Legal and Institutional Resources for World Bank Staff on the Inclusion of Disability Issues in Investment Projects (World Bank Law and Development Working Paper Series no.1) (Katherine Guernsey, Alberto Ninio, Marco Nicoli) pp 8-10. Available:

3. At the time the CRPD development process was launched in December, 2001, the following core international human rights conventions were in existence: International Covenant on Economic, Civil and Cultural Rights; International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. At that time the International Convention for the Protection of All Persons From Enforced Disappearance was still in draft form and had not yet been adopted.

4. The most comprehensive and widely accepted of which is the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities.

5. A notable exception here is General Comment No. 5 of the Committee on Economic, Social and Cultural Rights, which examines implementation of the Covenant on Economic, Social and Cultural Rights in the context of situations faced by people with disabilities.

6. See generally "Human Rights Are for All: A Study on the Current Use and Future Potential of the UN Human Rights Instruments in the Context of Disability," Gerard Quinn & Theresia Degener et al (study commissioned by the OHCHR), 2002. Available at: http://www.ohchr.org/english/issues/disability/study.htm

7. Specifically, Article 23 of the Convention on the Rights of the Child explicitly addresses children with disabilities.

8. See generally: http://www.un.org/millenniumgoals/

9. For example, it will be impossible for the goal of "education for all" when UNESCO estimates that fewer than 2% of disabled children worldwide are enrolled in schools. http://portal.unesco.org/education/en/ev.php-URL_ID=38522&URL_DO=DO_TOPIC&URL_SECTION=201.html

10. General Assembly Resolution 56/168 of 19 December, 2001, was co-sponsored by numerous countries, especially developing countries, such as Costa Rica, Ecuador, El Salvador, Morocco, Sierra Leone and South Africa.

11. GA Res 56/168. It should be noted that the Commission on Human Rights (referenced in the AHC mandate statement) no longer exists, and has instead been replaced by the Human Rights Council as part of the wider UN human rights body reform process.

12. Each AHC session lasted for ten working days, with the exception of AHC7, which lasted for fifteen working days in order to facilitate a complete reading of the Chair's Text.

13. "Secretary General Hails Adoption of Landmark Convention on Rights of People with Disabilities," Official Statement of the UN Secretary General, SG/SM/10797, 13 December, 2006. Available at: http://www.un.org/News/Press/docs/2006/sgsm10797.doc.htm

14. Historically the now defunct Human Rights Commission and its sub-body (the Sub-Commission on Human Rights) oversaw the development of legally binding human rights instruments. Failure to reach consensus within the Commission on the need for a disability-specific treaty prompted Mexico to turn to the General Assembly as an alternative host for the negotiations. By the second AHC session opposition to a disability-specific human rights convention had dissolved, and all AHC members, including initial opponents such as the EU, agreed that such an instrument was necessary.

15. The modalities of participation are set forth in the decision of the Ad Hoc Committee provided in the report of its first session, A/57/357.

16. Typically, only groups with "ECOSOC Consultative Status" are entitled to participate in the work of the UN General Assembly, and even then the modalities of participation are more restrictive than those permitted for the AHC. The AHC accreditation process was formally agreed to be the UN General Assembly in its resolution 56/510 of 26 July 2002.

17. To facilitate coverage the CRPD's fifty articles, they will be addressed below in the context of these sections. The full text of the CRPD is available at: http://www.un.org/esa/socdev/enable/conventioninfo.htm

18. CRPD Article 4(3).

19. The following are taken from the Disabled Peoples' International (DPI) "Implementation Toolkit": http://www.icrpd.net/implementation/en/toolkit/section2.htm See also, White Paper - Understanding the Role of an International Convention on the Human Rights of People with Disabilities, United States National Council onDisability, May 23, 2002.
Available: http://www.ncd.gov/newsroom/publications/2002/unwhitepaper_05-23-02.htm

20. Statement of former Secretary-General Kofi Annan, SG/SM/10797 (December 13, 2006).

 --------]]> The Military Commissions Act of 2006 tag:jurist.org,2007:/annotations//8.30755 2007-07-05T19:15:00Z 2010-06-25T02:07:11Z JURIST Guest Analyst David Glazier is a law professor at Loyola Law School Los Angeles, where he teaches foreign relations law and the law of war. Before attending law school, Glazier served twenty-one years as a US Navy surface warfare... Bernard Hibbitts David Glazier is a law professor at Loyola Law School Los Angeles, where he teaches foreign relations law and the law of war. Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer, commanding the USS George Philip and participating in UN sanctions enforcement against Yugoslavia and Haiti. He has written extensively on military commissions.

General Winfield Scott created the military commission in 1847 to maintain order among U.S. forces campaigning in Mexico. Convinced that the constitutional authority involved belonged to the legislative branch, Scott informed the Secretary of War and Attorney General that he would implement the commissions unilaterally "until Congress could be stimulated to act."

In the absence of definitive statutory guidance, Scott and his successors during the Civil War and Philippine Insurrection conducted trials closely conforming to court-martial procedure, including faithful adherence to the same rules of evidence. This changed only during World War II after President Roosevelt authorized a military commission he established to try eight Nazi saboteurs in 1942 to diverge from courts-martial rules, including authority to admit any evidence with probative value to a reasonable man. Although Roosevelt modified his order later in the war to call for closer conformance to court-martial procedure, President Bush based his own 2001 military order resurrecting the tribunal almost verbatim on FDR's original superseded directive. (Military commission history is detailed by this author in "Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int'l L. 5 (2005)).

After 159 years and the trials of more than 10,000 individuals, the Supreme Court's Hamdan v. Rumsfeld decision finally stimulated Congress to act. The resulting Military Commissions Act of 2006 (MCA) was one of the last achievements of the Republican congressional majority.

Public focus during MCA consideration centered on efforts by Senators Graham, Levin, McCain, and Warner to end the specific commission practices to which the Court objected, such as the ability to exclude the defendant from his own trial and to convict on the basis of evidence he wasn't allowed to see. Although the MCA corrects these flaws, the Act's reauthorization of military commission trials has nevertheless been portrayed by administration champions as a smackdown to the judiciary and reaffirmation of broad executive discretion. John Yoo termed it "a stinging rebuke to the Supreme Court . . . . which restores to the president command over the management of the war on terror." (John Yoo, "Sending a Message," Wall Street Journal.com, Oct. 19, 2006). Even MCA critics generally seem to agree. Amnesty International warned that:

By passing the Military Commissions Act, the United States Congress has, in effect, given its stamp of approval to human rights violations committed by the USA in the "war on terror". This legislation leaves the USA squarely on the wrong side of international law, and has turned bad executive policy into bad domestic law. (Amnesty International, "Rubber Stamping Violations in the 'War on Terror,'" Sep. 29, 2006)

The reality is more complex, particularly since the statute does much more than just regulate commission procedure. On one hand the MCA provides statutory trial mandates that restore much of the original commonality between military commission and court-martial procedure. A trial conducted under the MCA will look far different, and have the potential to be much fairer, than under the administration's initial rules. In this sense the Act provides a substantial rebuke to the President. But in the hands of a military judge lacking the highest sense of judicial integrity and impartiality, the rules of evidence codified by the Act can permit the introduction of testimony extorted through coercive interrogation practices as well introduction of hearsay of dubious reliability. So even the MCA's statutory mandate still falls short of ensuring fair trials. Another problem is that some of the crimes chargeable under the MCA fail to state violations of the law of war. Military jurisdiction over such offenses could thus be unlawful, potentially making participation in such trials a war crime in itself.

Other matters included in the MCA are a strict limit on habeas challenges by detainees, a retroactive rewrite of the War Crimes Act of 1996 to narrow the scope of punishable Geneva Convention Common Article 3 violations, and a clear statement that the Conventions do not provide a legal cause of action. The gratuitous language used in several areas was likely intended as much as symbolic pokes in the eye to internationalists as meaningful law. An informed judgment about the MCA's impact requires understanding both the full scope of the legislation and its relationship to existing law and practice.

Specific Provisions of the MCA

The MCA is divided into ten sections, with the bulk of the bill contained in Section. 3, "Military Commissions." The following analysis follows the organization of the final enactment:

Section 1 provides the short title, "Military Commissions Act of 2006" and a table of contents identifying the ten sections.

Section 2 declares that authority granted the President to establish military commissions in Section 3 does not limit his authority to establish military commissions in areas under martial law or in occupied territories.

Comment: The latter language should not be controversial — administering territories under military occupation seems a core commander-in-chief function regulated by the law of war (i.e., 1907 Hague Convention IV respecting War on Land — recognized at Nuremberg as customary international law -- and the universally ratified Fourth Geneva Convention of 1949). The mention of martial law should be of more concern. President James Madison had his Secretary of War write to Andrew Jackson in 1815 that there was no constitutional authority for declaring martial law. The only two mentions of martial law in current U.S. law authorize territorial governors to declare it, not the President. (See 48 U.S.C. 1422 (Guam) and 1591 (Virgin Islands). A future President could potentially cite this MCA language as implicit congressional authorization for a declaration of martial law, just as passing mention of military commissions in two sections of the 1916/1920 Articles of War was held by the Supreme Court in ex parte Quirin to constitute congressional sanction of the Nazi saboteur's trial.

Section 3 provides detailed guidance regulating military commission procedure, adding a new Chapter 47A to Title 10, U.S. Code, immediately following the Uniform Code of Military Justice. These provisions are identified in this analysis by their ultimate Title 10 subchapter and section numbers. In the interest of brevity, minor or non-controversial, provisions are generally omitted.

Subchapter I — General Provisions

§ 948a. establishes definitions used throughout the MCA. The most important of these is "unlawful enemy combatant," which is either:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who . . . has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal (CSRT) or another competent tribunal established by authority of the President or Secretary of Defense.

"Lawful enemy combatant" is then defined using language taken from Article 4 of the Third Geneva Convention of 1949 governing combatants qualifying for Prisoner of War (POW) status.

Comments: By adopting "purposefully" as the mens rea for providing material support, the MCA would preclude, say, persons innocently donating to Muslim charities that are covertly aiding al Qaeda being subjected to military trial. But on the flip side, the definition of "material support" is still extremely broad and potentially subject to abuse. Furthermore, there is no clear support in the law of war for holding that providing support to an enemy qualifies as a war crime unless the individual owes some duty of allegiance, such as a resident in occupied territory who has an implicit duty to comply with directives of the occupying power. The second criteria, determination by a CSRT, is also problematic given emerging accounts of how unreliable these classifications have been, often based on flimsy evidence, or failing to consider exculpatory information. The option to use other tribunals could open the door for a process even less protective than the CSRT.

"Lawful enemy combatant" is peculiarly defined using Geneva Convention language, including "State party," which seems meaningless when removed from the treaty context.

§ 948b establishes foundational guidance, most importantly authorizing the President to use military commissions for the purposes set forth in the act. It declares that while the MCA is based on the UCMJ, the latter only applies where so provided in the MCA. The UCMJ's speedy trial, self-incrimination, and pretrial investigation provisions are then specifically declared inapplicable. § 948b also bars introduction of military commission holdings into courts-martial; declares military commissions to be "regularly constituted courts" meeting the requirements of Common Article 3 (CA3) of the 1949 Geneva Conventions, and denies those treaties as a source of rights to potential commission defendants.

Comments: The delegation of authority to the President is a subtle, but significant, reaffirmation that the constitutional authority underlying these trials belongs to Congress. The provisions denying UCMJ applicability evidence the MCA's hasty drafting. After stating that the UCMJ does not apply, the identification of specific non-applicable articles is redundant, and could open the door to challenges that UCMJ provisions not expressly excepted by the MCA should be applicable after all. The exclusion of commission holdings from courts-martial is troubling because the Guantanamo tribunals will logically be called upon to make decisions on law of war questions that have not been considered by American tribunals since World War II. IF these trials are fairly and thoughtfully conducted, decisions they reach could be of value in future courts-martial trying law of war violations. (Courts-martial can try any law of war violation, and often will be the only tribunal with authority to try U.S. service personnel or actual POWs). Statutory exclusion of commission precedents suggests an upfront assumption that these will be second-class tribunals, in which case the subsequent declaration that they meet CA3 standards seems contradictory. In any event, ascertaining compliance with law, whether statute or treaty, seems a core judicial function, not something to be accomplished by congressional fiat. The fact that Congress takes the trouble to declare that the commissions meet CA3 standards can at least be logically construed as legislative reaffirmation that it is not intending the MCA to be interpreted as superseding the Conventions under the last in time rule.

§ 948c limits military commissions to trying alien unlawful enemy combatants.

Comment: While concern has been expressed that the MCA's definition of unlawful enemy combatant authorizes their indefinite detention, the only explicit authorization in the bill is this authority to try them by military commission.

§ 948d establishes military commission jurisdiction as including offenses made punishable by the MCA or the law of war "before, on, or after September 11, 2001.

Comment: The only war crime generally recognized as capable of being committed before conflict begins are crimes against peace. These commissions are thus logically limited to trying crimes that date from the start of hostilities, yet the government has never definitively established an actual commencement date for this war. Absent a clearly defined early start date, jurisdiction over any offense committed before 9/11/2001 seems problematic.

Subchapter II — Composition of Military Commissions

§ 948j requires a military judge be detailed to preside over each military commission. (§ 949l gives the judge ruling authority equivalent to courts-martial judges).

Comment: This is a significant improvement from the original commission structure which rolled back the clock to a WWII-era presiding officer whose trial decisions were subject to override by vote of the trial panel and whose interlocutory actions were subject to review by the convening authority. Actual military judges have been used in courts-martial since 1968.

§ 948k governs trial and defense counsel assignment, allowing civilian as well as military "trial counsel" (prosecutors) but requiring an actual military judge advocate be assigned for the defense.

§ 948m requires a minimum trial panel of five members except for capital trials where a minimum panel of twelve is called for by § 949m(c).

Comment: This is a significant improvement from the original rule which permitted trial by panels of just three officers. Since convictions generally require only a 2/3 majority, a three member panel actually required the defense get a 2/3 majority to avoid conviction.

Subchapter III — Pre-Trial Procedure

§ 948r prevents defendants from being required to testify and excludes any statement obtained through torture. Statements obtained through coercion, or in which the degree of coercion is disputed, may be admitted if the military judge finds that:
(1) the statement is probative and reliable under the totality of the circumstances; and
(2) the interests of justice are best served by its admission.
If the statement was obtained after enactment of the Detainee Treatment Act of 2005 (DTA)(Title X of P.L. 109-148, 119 Stat. 2739), then it must also not have been obtained in violation of § 1003 of that act, i.e., it must not be treatment that would violate the 5th, 8th, or 14th Amendments to the U.S. Constitution.

Comment: This section is one of the most troublesome provisions of the MCA. Given how narrowly the Administration has defined torture, even the most egregious interrogation procedures used at Guantanamo and elsewhere likely fall only in the coercion category. The language might also leave room for prosecutors to argue that a statement obtained by actual torture was merely coerced, making the degree of coercion then "disputed." Under the literal MCA wording, a judge could then decide to admit it. The extensive discretion to admit coerced testimony, particularly if obtained before 2005, means that the ultimate fairness of these trials likely depends on how liberally judges are willing to interpret the terms of art "reliable" and "interests of justice."

Subchapter IV — Trial Procedure

§ 949a authorizes the Secretary of Defense, in consultation with the Attorney General, to make specific rules for military commission procedure, calling for principles of law and rules of evidence to conform with those for court-martial to extent deemed practicable. The accused is specifically entitled to see evidence entered against him, to be present for all trial sessions, and to defend themselves. The "probative to a reasonable man" evidentiary standard is specifically authorized but commission judges are now required to exclude evidence whose probative value is substantially outweighed by danger of unfair prejudice. Hearsay is admissible so long as the opponent is given advance notice and the opportunity to demonstrate that it is "unreliable of lacking in probative value." Congress must be notified of any rule changes 60 days before they go into effect.

Comment: By requiring detailed rules promulgated in advance, this section mandates significant improvement over the initial commission proceedings in which presiding officers were observed to largely make up procedural rules as they went along. (The requirement for standing rules contained in this section was subsequently met through the promulgation of The Manual for Military Commissions in January, 2007). New requirements that the accused be present at all actual trial sessions, and be able to see all evidence that is actually introduced against them, address the most serious tribunal criticisms cited by the Hamdan majority. While the hearsay provisions trouble many attorneys steeped in Anglo-American legal traditions, the language applies even-handedly to both prosecution and defense. This approach was adopted in the Navy trials conducted on Guam after WWII, considered by historians who have examined them to be the fairest of that era. Fully half the requests for Guam hearsay admission originated with the defense. Presumably many witnesses of value to Guantanamo defense teams would be unwilling to travel there fear of being seized and detained themselves. So the ability to introduce statements remotely could be helpful to the defense.

§ 949b prohibits improper influencing of a commission, judge, reviewing authority, or counsel.

Comment: Although the article contains no punitive provisions for its violation, persons subject to the UCMJ could possibly be subject to prosecution for its violation under Article 92 (disobeying a general order — this would apply based on the statutory provision being incorporated into subsequent military commission regulations) or one of the "general articles:" Article 133 (conduct unbecoming an officer) or 134 (conduct prejudicial to good order and discipline).

§ 949c defines duties of trial and defense counsel, and specifically articulates criteria for civilian representatives, including U.S. citizenship, membership in a U.S. bar, eligibility for at least a Secret clearance, and having signed an agreement to comply with all commission ground rules.

Comment: These rules are a marked departure from past war crimes prosecutions. Defendants traditionally have had the right to be defended by counsel of their own nationality; in most cases this representation was underwritten by trying nation. Given the substantial distrust most commission defendants likely harbor towards the United States, ability to select trusted counsel seems essential to a fair trial.

§ 949d allows the military judge to conduct hearings on legal matters without the trial panel, permits closure of the trial to the public for safety or security reasons, and allows exclusion of a disruptive accused. The government can limit the accused's access to classified information and protect sources and methods from disclosure.

Comment: Most of this section simply conforms military commission procedure to that of courts-martial. The accused does now get to see all evidence that the trial panel does, rectifying a major injustice in the original rules. But the ability to withhold source data might in practice deny the accused the ability to help his attorneys contest the validity of evidence against him. The ability to conceal source data may also be abused to avoid disclosure of interrogation methods and degree of coercion involved, thus precluding meaningful determination of its reliability. These rules do not necessarily preclude a fair trial, but justice will be at the mercy of good faith conduct by both the prosecution and trial judge.

§ 949f allows the trial judge to decide challenges for cause and gives each side one preemptory challenge.

Comment: This brings commission procedure in line with courts-martial and is a big improvement over original rules which lacked preemptory challenges and required challenges for cause to be decided by the convening authority who had personally approved the panel.

§ 949i applies UCMJ language about pleas to the military commission.

Comment: This is potentially significant because unlike U.S. civilian courts, courts-martial cannot accept a guilty plea if the accused fails to admit every element of the offense. Proceedings against Abu Ghraib defendant Lyndie England were disrupted by this concern.

§ 949j states that the defense "shall have a reasonable opportunity to obtain witnesses and other evidence . . . ." and provides for discovery by the defense and an obligation for the prosecution to disclose exculpatory evidence. This is tempered by the authority for the prosecution to seek the judge to authorize substitutions for classified information.

Comment: This section gives reason for significant concern. UCMJ article 46, by comparison, gives court-martial accused "equal opportunity to obtain witnesses and other evidence," not "reasonable." This section can also be read to mean that the prosecution may withhold some classified information even from defense attorneys who have security clearances. And it clearly states that some relevant information can be withheld from the accused themselves as long as it is not given to the trial panel. This section calls into question whether the defense will be able to learn enough about classified evidence's pedigree to meaningfully challenge its reliability.

§ 949m requires the same votes as for courts-martial: 2/3 for conviction and routine sentencing, ¾ to sentence to more than ten years confinement, unanimous for conviction in a capital case and for the death sentence.

Subchapter V — Sentences

§ 949t authorizes the President or Secretary of Defense to prescribe maximum punishments for offenses.

Comment: This is consistent with the UCMJ, but potentially subject to abuse since there is no constraint on what limits, other than death, can be put on even minor offenses.

§ 949u allows sentences to be served in facilities under military or federal facilities, as well as those under the control of "its allies, or which the United States may be allowed to use."

Comments: The idea that convicted individuals might be allowed to serve sentences in their home countries (e.g., Australian David Hicks) could be viewed as positive, but the term "allies" is never defined in the bill and the phrase "which the United States may be allowed to use" seems hopelessly ambiguous. Some convicted individuals could be transferred to foreign prisons failing to meet international standards for humane treatment. The MCA also never states what happens to individuals who complete their sentences — must they be released or can they be returned to indefinite preventative detention?

Subchapter VI — Post-Trial Procedure and Review of Military Commissions

§ 950b — e provide post-trial review by the convening authority and initial appeal rules essentially the same as that provided in courts-martial.

§ 950f creates a first tier appellate review consisting of a panel of at least three appellate military judges called the "Court of Military Commission Review." The panel is limited to reviewing matters of law.

Comments: This is generally consistent with UCMJ procedure except that courts-martial review includes authority to "weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact." (10 U.S.C. § 866(c)). The first level of appellate court-martial review was originally called the "Court[s] of Military Review;" hence the logical origin of the "Court of Military Commission Review." (They have subsequently been renamed as the "Court[s] of Criminal Appeals.") As the first level of a two-tiered appellate process, this new review panel should not be confused with the single review panel previously established by DOD. (See Military Commission Instruction No. 9, Oct. 11, 2005 for details of the superseded provisions).

§ 950g provides for appeal from the Court of Military Commission Review (CMCR) to the U.S. Court of Appeals for the District of Columbia Circuit (or directly to the D.C. Circuit if an accused waives the right to CMCR review). Such review is limited generally to questions of law, and specifically to whether the result was consistent with the MCA and "to the extent applicable, the Constitution and the laws of the United States." The Supreme Court is then authorized to review D.C. Circuit final judgments by writ of certiorari.

Comment: The substitution of the D.C. Circuit for the Court of Appeals for the Armed Forces (CAAF), established by the UCMJ as the second tier review of courts-martial convictions, is curious. The narrow limitations on the scope of issues allowed to be considered on appeal, if upheld on the almost inevitable judicial challenge, will leave substantial grounds for perceiving the military commission process to be unfair.

§ 950h calls for government provision of appellate counsel at no cost to the defense at each level of review, and also allows the accused to be represented by civilian counsel.

Comment: This section requires civilian appellate counsel to meet the same restrictions imposed on trial counsel, and may constrain defendants' ability to obtain experienced appellate practitioners. Requiring clearances for all counsel seems unnecessary given that appeals are currently limited to questions of law. Defendants would need one lawyer with an appropriate clearance when there are classified portions of the trial record, but should logically be able to call upon any qualified attorney to present arguments of law.

§ 950j establishes the finality of military commission judgments, subject only to the appellate procedures provided by the MCA. It states that no "court, justice, or judge" has jurisdiction to hear any other claim related to military commissions, including any pending at the time of MCA enactment.

Comment: This comprehensive effort to strip federal courts over all collateral jurisdiction over military commissions is obviously one of the most controversial provisions of the MCA. It is a clear departure from past practice — both courts-martial and military commissions have historically been open to collateral review. Post 9/11 indefinite detentions and military commission trials raise unprecedented issues of law that logically beg judicial resolution.

Subchapter VII — Punitive Matters

§ 950p proclaims that the MCA simply codifies existing offenses "traditionally" triable by military commissions and therefore does "not preclude trial for crimes that occurred before the date of enactment." §§ 950q — v then provide definitions of terms such as "principals" and "accessory after the fact," as well as enumerating 28 specific offenses ranging from "murder of protected persons" to "conspiracy."

Comments: This is probably the most immediate area of concern among MCA provisions relating directly to trials. As the statute implicitly acknowledges, newly defined crimes can only lawfully be prosecuted if committed after MCA enactment. To try individuals for conduct that took place previously, the offenses had to already be crimes under the law of war per the internationally accepted principle of "nullum crimen sine lege." But this is not the case for several of the offenses defined in the MCA:

§ 950u makes "solicitation" to commit any other offense defined in the MCA an offense triable by military commission. But the Anglo-American conceptualization of inchoate offenses is not shared by many other legal systems, and there is no clear substantive precedent for holding this to constitute a law of war offense.

§ 950v. (b)(28) makes conspiracy to commit any other offense defined in the MCA triable by military commission. While international tribunals recognize participation in a joint criminal enterprise as creating liability for all participants, they do not recognize the Anglo-American inchoate crime of conspiracy, i.e., entering into an agreement to do an illegal act, as constituting a crime per se. This issue was specifically addressed by the Nuremberg tribunal which found conspiracy to commit a crime against peace, that is planning to wage aggressive war, to be the only form of "conspiracy" that could be prosecuted. Conspiracy to commit a war crime was rejected as a punishable offense. This article seems to have been crafted to address some of this concern because it does require "an overt act to effect the object of the conspiracy." But under international law it is the overt act that should be charged, not the "conspiracy." It's likely some detainees could be lawfully prosecuted for conspiracy offenses in Article III courts applying federal criminal law, but these are not offenses under the law of war.

§ 950v. (b)(25) makes "providing material support for terrorism" an offense triable by military commission. Historically the law of war has dealt with the conduct of belligerents, not supporters. This offense seems to lack validity under the law of war. It is also unnecessary; by international agreement terrorism has been treated as an ordinary crime and the U.S. federal code already defines most terrorist acts, including providing material support, as felonies. This conduct can be tried in a regular federal court, but unless the conduct was committed after the date of MCA enactment, should not be triable by a military commission. This is an issue of particular concern because at least one defendant is now charged only with this offense.

There are problematic aspects with several other MCA provisions in this part of the bill:

§ 950v.(a)(2) adopts the term "protected person" from the 1949 Geneva Conventions which is then used in several subsequent punitive articles. Since the Administration explicitly denies the Conventions' applicability to what it calls "the war on terror," it is not clear that this definition is part of applicable international law in this conflict. If the United States is not granting the protections accorded by the Conventions, shouldn't it be estopped from using them as the basis of criminal charges? (The conduct at issue, e.g., intentionally killing non-combatants, does logically constitute war crimes, but should be defined with respect to the customary law of war rather than by reference to treaties the government holds inapplicable).

§ 950v.(a)(24) makes "terrorism" a crime triable by military commission. Most of the conduct described in this article does violate the law of war but should be defined in traditional terms — e.g., conducting indiscriminate attacks, and not defined by the term "terrorism" which is part of civilian criminal law parlance.

§ 950v.(a)(27) addresses spying, which is historically a crime punished by military tribunals, but fails to apply the customary law of war requirement that the individual must be captured before returning to their own lines. Unlike the federal crime of espionage, under the law of war once a "spy" rejoins their own forces, liability for the offense is permanently terminated.

§ 950w permits military commissions to try for perjury, obstruction and justice, and contempt.

Comment: It is unclear just who can be tried for these offenses. The MCA does use the term "anyone" in conjunction with contempt, but contains no similar guidance with respect to perjury and obstruction of justice. Since § 948c. previously made only unlawful enemy combatants liable to commission jurisdiction, the ambiguity in § 950w should logically be construed in a manner consistent with that express limitation.

Section 4 of the MCA makes technical conforming amendments to the UCMJ. The one substantive change is language added to UCMJ article 81 making conspiracy to commit a war crime a violation of that statute as well.

Section 5 declares that neither the Geneva Conventions nor the Additional Protocols (to which the United States is not a party) can be invoked as a source of rights in civil actions in U.S. courts if the U.S. or anyone affiliated with the government is a party.

Comments: Given that the U.S. denies the applicability of these agreements to the current conflict anyway, and the Supreme Court has held that only a single provision, CA3 is applicable, this measure is largely symbolic as far as the current conflict goes. Obviously intended to cabin U.S. government liability, this provision would perversely also bar American servicepersons from suing foreign officials for mistreating them.

Section 6 addresses several aspects of the Geneva Convention under U.S. law. It amends the War Crimes Act (WCA) (18 U.S.C. 2441) by retroactively replacing the existing generic codification of CA3 violations with an explicitly defined set of offenses. It gives the President authority to interpret the meaning of the Conventions and also to promulgate additional Convention violations as criminal offenses via Executive Order published in the Federal Register.

Comments: This section is a curious mixture of advances and retreats with respect to defining war crimes under federal law. Each of the four Geneva Conventions has an article which define which of its provisions constitute "grave breaches" if violated. According to the Conventions, state parties are obligated to exercise universal jurisdiction over these grave breaches and to suppress all other violations. The U.S. has fallen well short of its obligations in this respect. Four decades after ratifying the treaties, the U.S. finally enacted the WCA in 1996, asserting jurisdiction over grave breaches but only if either perpetrator or victim are American. This approach fails both to meet the universal jurisdiction mandate for grave breaches or to meet the treaty obligation to suppress other breaches. Congress amended the WCA the next year to add CA3 violations as punishable offenses, but provided no specificity as to what constituted a violation.

On the positive side, the MCA now details conduct prosecutable as CA3 violations, and the President is authorized to expand the coverage of other Geneva violations that can be punished via Executive Order. On the negative side the retroactive narrowing of the scope of criminal CA3 violations was obviously crafted to exempt government officials from prosecution for detainee treatment that would fall within any reasonable person's interpretation of cruel, inhuman or degrading treatment proscribed by CA3. It also excludes denial of a fair trial from the list of defined offenses, so participants in the military commission process are protected as well. On the incomprehensible side, the MCA addresses "grave breaches" of CA3 although there is no such thing under the Conventions, and bars use of foreign/international legal materials in interpreting CA3 violations. The last point is probably largely symbolic; since the statute now spells out in detail the conduct that can be punished there is less need to consult persuasive authority than if the statute simply makes violation of the somewhat ambiguous CA3 language.

Section 6.(b)(5) declares that although Congress has substantially narrowed the scope of CA3 violations that can be prosecuted in federal courts, this does not define the limits of U.S. obligations under CA3. Section 6.(c) categorically declares that the U.S. government is prohibited from inflicting "cruel, inhuman, or degrading treatment or punishment" on any person, regardless of nationality or location. This treatment is then defined in terms of conduct that would be proscribed under the Fifth, Eighth, and Fourteenth Amendments, and the President is called upon to ensure compliance via administrative rules and procedures. Once this is done, U.S. service personnel and civilian defense contractors could likely be prosecuted for violations under UCMJ article 92, although CIA personnel probably could not be. Unfortunately it appears that the Department of Justice takes a very narrow view of what conduct violates these amendments so it remains to be seen what standard will ultimately be applied.

Section 7 amends the federal habeas statute (28 U.S. 2241), previously amended by the DTA, to more clearly strip jurisdiction over individuals determined to be, or awaiting determination to be, enemy combatants, leaving intact only the limited D.C. Circuit Court of Appeals review provided for by the DTA.

Section 8 amends DTA language to require the government to provide lawyers to federal officials under investigation or criminally charged for conduct involving suspected terrorists that was authorized by direction from higher authority.

Sections 9 and 10 make technical amendments to the DTA to bring its language into conformance with the MCA.

Conclusion: The MCA restores much of the historic commonality between courts-martial and military commissions and repudiates a number of the Bush Administration's efforts to adopt rules biased against defendants. It is possible that a fair trial could be conducted under this statute, but only if the government refrained from charging those offenses not clearly supported by the law of war, the prosecution fully discloses all evidence and provides sufficient details about the sources to permit accurate assessment of its validity, no coerced testimony is admitted, and any hearsay is carefully scrutinized for reliability and lack of prejudice. Given that the government has already rushed to press post-MCA charges apparently unsupported by the law of war, the MCA's limitations on both habeas and direct review seem to further reduce the likelihood that justice will be achieved by the Guantanamo trials. --------]]>