JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General’s Corps, says the new Military Commissions Act reflects a clear and much-needed Congressional commitment to the war on terror, which to this point has been largely conducted in legal terms by the executive branch with occasional interjections from the judiciary…

With the passage of the Military Commissions Act of 2006 (MCA), Congress has firmly committed itself to the view that the nation is at war and that the legislative branch of government has a significant role to play in a variety of legal issues associated with the “enemy combatants” — both legal and illegal – that seek to do great physical harm to the United States and its allies. While the Detainee Treatment Act of 2005 provided an advanced signal that Congress was at last willing to get involved in a limited manner in some of the thorny legal aspects of the War on Terror, the MCA represents a major Congressional shift in scope. In short, the MCA is a resounding statutory broadside that impacts forcefully and with great effect across the entire legal landscape.

Above all, the MCA has certainly washed away all doubt regarding Congress’ willingness to characterize the War on Terror as a real global war against real enemies who desire to murder and terrorize. Accordingly, Congress has demonstrated that it is more than willing to employ the full weight of the rule of law pertaining to armed conflict against our enemies. Prompted by the Supreme Court’s holding in Hamdan v. Rumsfeld, an energized Congress understood that they could no longer remain on the sidelines in the War on Terror. Congress established the creation of military commissions, affirming quite satisfactorily that the MCA is consistent with the requirements of Common Article 3 of the Geneva Conventions — the military commissions so established constitute a “regularly constituted court,” affording all the necessary “judicial guarantees which are recognized as indispensable by civilized peoples.”

Not only does the MCA provide crystal clear guidance in the context of the establishment and operation of military commissions to try “any alien unlawful enemy combatant” (al-Qa’eda and al-Qa’eda-styled Islamic terrorists) it provides concrete statutory definitions concerning a wide variety of terms that have been previously hotly debated. The MCA also clearly places a large legal “seal of approval” on many of the initiatives taken by the Bush Administration in the War on Terror. For instance, the MCA defines “unlawful enemy combatants” in precise language while recognizing in the same breath the lawful functioning of the Combatant Status Review Tribunal for enemy combatant determination set up by the Department of Defense in response to the 2004 Hamdi v. Rumsfeld ruling:

(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, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

The MCA also lists in detail the criminal offenses that fall within the jurisdiction of the military commission. Apart from the traditional list of war crimes the MCA appropriately includes “conspiracy” and “providing material support for terrorism,” drawing definitional language from the Material Support provisions at Section 2339A for the later offense. In addition, reaffirming the fact that the United States is in a state of hostilities, the MCA addresses the matter of streamlining the process for dealing with the large number of petitions filed by lawyers on behalf enemy combatants in the federal court system. Again, if one recognizes the government’s premise that the nation is at war and the laws of war apply, then the MCA properly deals with restricting habeas corpus and providing for other limitations on the jurisdiction of civilian courts.

In the sphere of authorizing trial by military commission, the Congress wisely allows for the military commission to operate in the traditional manner of all previous military commissions (hundreds were tried by military commissions in World War II, some were even U.S. citizens) and consider, for example, hearsay evidence and information gathered without a search warrant. The MCA holds that “[e]vidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person” and “[e]vidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.” While the MCA correctly excludes all statements obtained by use of torture, the MCA also tackles the hard question of statements taken from an illegal enemy combatant where a “degree of coercion is disputed.” Such statements may be admissible under strict guidelines depending on when they were obtained. Statements obtained before the enactment of Detainee Treatment Act “in which the degree of coercion is disputed may be admitted only if the military judge finds that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would best be served by admission of the statement into evidence.” Statements obtained after enactment of Detainee Treatment Act in which the degree of coercion is disputed may be admitted only if the military judge finds that in addition to (1) and (2) above, “(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.”

Ironically, some view the common sense evidentiary provisions in the MCA as a violation of Common Article 3’s requirement that the accused be afforded all the necessary “guarantees … recognized as indispensable by civilized peoples.” Such ethnocentric views are quickly dispelled when one considers the day-to-day activity of most modern European criminal courts where hearsay is regularly considered and far different legal avenues regarding the introduction of evidence are regularly employed. Even the International Criminal Court allows hearsay. In fact, earlier calls by some (uniformed judge advocates who should have known better) that a military commission should include the same due process standards that American soldiers enjoy at a military courts martial under the Uniformed Code of Military Justice were wisely disregarded by Congress. Obviously, these “relaxed” provisions in the MCA are necessary due to the exigencies of war — witnesses and victims may be dead, investigators are not able to get to the crime scene, etc.

As various legal challenges to portions of the MCA make their way through the lower courts, e.g., the MCA revokes all U.S. court’s jurisdiction to hear habeas corpus petitions by alien enemy combatants in U.S. custody, it is highly doubtful that the Supreme Court will strike down very much of the MCA as unconstitutional. Indeed, in time of war the Court has traditionally been most reluctant to intervene in matters of national security, particularly when the executive and legislative branches have joined to
gether in such a seamless fashion.

In summary, Congress has sat on the sidelines in the War on Terror for far too long. While rational people understand that the unique threat of al-Qa’eda-styled terrorism can only be addressed by employing the laws established for armed conflict, it is equally true that said laws of war need to be updated to encompass the new paradigm. For over five years, Congress has simply watched as the executive branch, with occasional mandates from the judicial branch, crafted and implemented an emerging rule of law. It is extremely supportive of the rule of law and vital to the issue of legitimacy that the legislative branch of our government has finally joined the process.

Jeffrey Addicott is Associate Dean for Administration, Director, Center for Terrorism Law and Professor of Law at St. Mary's University School of Law. An active duty Army officer in the Judge Advocate General’s Corps for twenty years, he spent a quarter of his military career as a senior legal advisor to the United States Army’s Special Forces. He retired in 2000 at the rank of Lieutenant Colonel. His latest book is Terrorism Law: Cases and Materials, 3rd Edition (2006).
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