JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, and JURIST Guest Columnist Victor Hansen, also a former lieutenant colonel in the United States Army JAG Corps and now a professor at New England School of Law, say that although the new US military commissions recently established by President Bush under the Military Commissions Act of 2006 may look like war crimes courts staffed by military professionals, a reading of the statute and its attendant manual of procedures suggests they are something more (or less)…

One of the most controversial legal issues related to the US "Global War on Terror" has been the decision by President Bush to establish military commissions to try “enemy combatants.” Serious questions related to the procedures originally established for these military tribunals culminated in the Supreme Court’s decision last June in Hamdan v. Rumsfeld to invalidate the original construct for the commissions. Last week, however, trials by military commission were formally re-initiated when President Bush issued an executive order to try alien enemy combatants under the terms of the new Military Commissions Act.

Although the revised commission process is much improved from the original construct, many doubts linger about the legitimacy of the new tribunals. Much of this doubt stems from a persisting and rather fundamental question: what is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created? A review of the punitive articles of the Military Commission Act and the elements for these crimes established by the new Manual for Military Commissions suggests an unfortunate conclusion.

In October last year, Congress responded to the Supreme Court’s invalidation of the President’s order creating the military commissions by providing statutory authority for their resurrection. This took the form of the Military Commission Act of 2006. Much of this new statute reflects the recommendations by many military and civilian experts to model military commissions on existing courts-martial. While many of these provisions are substantial improvements from the original construct, others have drawn intense criticism, including the habeas-stripping provision and the authority for the introduction of coerced statements. However, it is the punitive articles — the part of the statute establishing the actual offenses available to the military commission prosecutors — that expose the overly broad nature of this continuing government effort to “square the circle”.

This section of the MCA begins by indicating that purpose of the statute is to “codify offenses that have traditionally been triable by military commissions” and that the statute “does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission.” However, because jurisdiction of military commissions has historically been derived from the laws of war (with the exception of the “martial law” jurisdiction discussed by the Supreme Court in Hamdan v. Rumsfeld, a theory of jurisdiction clearly inapplicable to enemy combatants), jurisdiction has also been historically limited to violations of the laws of war. Accordingly, the reference in the statute to “offenses that have been traditionally triable by military commissions” must be understood to refer to violations of the laws of war.

The actual enumerated offenses, however, seem to stray far from this jurisdictional mooring. They include not only the offense of conspiracy (considered invalid by a plurality of the Hamdan Court), but other inchoate offenses, offenses against the judicial process, terrorism, hijacking, and material support to terrorism, none of which can legitimately be characterized as “traditional” war crimes, but are instead “traditionally” considered violations of domestic law. Vesting the military commission with jurisdiction over these type of offenses seems inconsistent with the assertion that the statute merely codifies offense previously triable by military commission. More troubling, vesting the commission with jurisdiction over offenses beyond the special competence of the profession of arms suggests that convenience result facilitation is the principal purpose of the statute.

The recommendations to emulate established courts-martial also resulted in the explicit grant of authority for the development of rules to implement the statute, rules that were recently published as the Manual for Military Commissions, or MMC. Like the Manual for Courts-Martial, the MMC puts the proverbial “flesh on the bones” of the MCA. It provides pre-trial, trial, and post-trial procedures for the trial of alien enemy combatants. It also provides the elements for the offenses established by the MCA. Like the Manual for Courts-Martial, these elements articulate the proof requirements for each offense. Clarifying the elements of proof through such a process would be considered unremarkable for military practitioners. What is remarkable, however, is how the MMC appears to actually transform the nature of the offenses it is purportedly clarifying.

One clear example of this transformation is with the offense of killing a protected person. Under the MCA the offense is defined as follows; “Any person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct.” However, the MMC defines the elements of this offense as follows (1) The accused without justification or excuse, intentionally and unlawfully kills a protected person; (2) The accused knew or should have known of the factual circumstances that established that person's protected status; and (3) The killing took place in the context of and was associated with armed conflict.

The MMC’s clearing of the path of obstacles for the prosecution is both telling and troubling. Under the Uniform Code of Military Justice there are several crimes where the status of the victim serves as an aggravating factor. Examples include; assault on an officer/non-commissioned officer under Article 128, assault on a sentinel or look-out under Article 128, disobeying a superior officer under Article 91, and disrespect towards a superior officer under article 89. All of these offenses require the prosecution to prove that the accused knew the victim’s status. Likewise with the offense of premeditated murder under Article 118, one possible aggravating factor which could warrant a death sentence is the status of the victim as an officer, non-commissioned officer, or law enforcement official in the performance of their duty. In order to prove this aggravating factor, the prosecution is required to prove that the accused knew of the victim’s special status. It is telling that by abandoning the proof of knowledge requirem
ent on this issue in favor of a negligence standard, the MMC is departing significantly from long established proof requirements under the UCMJ.

This articulation of elements is also troubling, for it raises a serious question of whether the MMC has fundamentally altered the nature of the statutory offense. This is because the MMC has limited the requirement to prove the mens rea of intent to only the act of killing. According to the MMC, it is not necessary that the government prove that the accused had knowledge of the protected status of the victim, even though the offense is defined as an intentional killing of a protected person. Instead, the government need only prove that the accused was negligent with regard to the victim’s status. As long as the accused knew or should have known of the victim’s status, he may be guilty of this offense. Reducing the defendant’s mens rea to negligence on this point, makes this an easier case for the government to prove. However, it also seems to transform an offense that is properly derived from the law of war — the intentional killing of a protected person — to an offense beyond the scope of that source of prohibition by eliminating the requirement of knowledge of the status of the victim.

There is no authority in the MCA for the Department of Defense to effectively redefine and lessen the proof requirements of the statute. If the MCA represents the codification of already existing crimes under the law of war (which is itself questionable), it appears that as codified by Congress the killing of a protected person requires the accused to know of the victim’s status. Yet with sleight of hand, the MMC states without citation or reference to any legal authority that the standard is actually a negligence standard of know or should know.

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters. Victor Hansen, a former lieutenant colonel in the United States Army JAG Corps, is a professor teaching courses in criminal law at New England School of Law.
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