JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that a reconstituted military commission at Guantanamo Bay set up to only prosecute aliens would necessarily violate bilateral treaties, create a "denial of justice" for aliens under customary international law, and violate principles of human rights law established by treaty and custom….

Advisers to President Obama are reportedly considering a revamped military commission to prosecute a few of the detainees presently held at Guantanamo Bay, Cuba. If such a commission is constituted, the President wants to have newly revised procedures that can assure fairer trials than those that might have occurred under the 2006 Military Commissions Act. Other detainees would be prosecuted in a federal district court with full procedural safeguards. This is generally admirable. Nevertheless, for reasons unknown, it is evident that the President is not receiving adequate legal advice with respect to international law, advice that could be forthcoming even from some of the leftover lawyers from the Bush Administration who still walk the halls in DOJ, DOD, and State.

There is enough guidance in the majority opinion of Justice Stevens in Hamdan v. Rumsfeld for a careful lawyer to realize that common Article 3 of the Geneva Conventions “is applicable here, and … requires that … [a detainee] be tried by a ‘regularly constituted court affording all the judicial guarantees'” recognized under customary international law and that, as Justice Stevens noted, Article 14 of the International Covenant on Civil and Political Rights, among other instruments, sets forth “basic protections” regarding due process. Justice Stevens also noted that “regularly constituted” courts include “‘ordinary military courts’ and ‘definitely exclud[e] all special tribunals,'” that regularly constituted means “‘established and organized in accordance with the laws and procedures already in force.'” Justice Kennedy confirmed that common Article 3 applies as “binding law,” that a “regularly constituted” court “relies upon … standards deliberated upon and chosen in advance,” and that a violation of common Article 3 is a war crime. Justice Kennedy added: “[t]he regular military courts in our system are the courts-martial” and they “provide the relevant benchmark.”

As I noted in my recent book Beyond the Law, a military commission created post hoc and as a special military tribunal under the Military Commissions Act (MCA) (which was not “already in force” or “chosen in advance”) simply could not meet the “regularly constituted” test and would necessarily violate common Article 3. A violation would be even more clear with respect to creation of a new special tribunal in 2009 designed merely to prosecute a few detainees while others are sent to a federal district court. As noted in the book, under venerable Supreme Court doctrine, Geneva law takes primacy as law of the United States over subsequent federal legislation such as the MCA. There is no valid reason to support a claim that President Obama should create a new special tribunal and violate common Article 3, which would be a war crime. An additional war crime can occur under the 1907 Hague Convention No. IV if one would “declare abolished, suspended, or inadmissible in a court of law the rights … of the nationals of the hostile party” to an international armed conflict. There is no valid reason for doing this either.

The book also documented additional violations of international law that would occur with respect to a military commission created under the MCA, some of which were addressed in Hamdan and as far back as December 2001 when I was on a panel with John Yoo addressing the new Bush military commission during a national workshop for federal judges and when some of the improprieties a few of us had warned about were outlined in a lengthy December 26th New York Times article. One of the problems that the Supreme Court addressed is that a military commission at Guantanamo would not operate in a theater of war or in a war-related occupied territory and, therefore, could not be properly constituted as a law of war military commission. We are not sure what procedural changes might be contemplated by Obama's advisers, but the MCA presented significant problems concerning the need for limitation of offenses to those under the laws of war, the right to counsel of one’s choice, confrontation of all witnesses against an accused, and the right to review.

More significantly, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a “denial of justice” for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires “equality before the law” and “equal protection of the law” as well as the prohibition of national origin discrimination.

Why would Obama's advisers even consider setting up a special post hoc tribunal merely for a few aliens, knowing that other aliens would be prosecuted in a federal district court and knowing that such a tribunal would result in unavoidable violations of customary and treaty-based laws of war and human rights law? Why place all who would be directly involved in the creation and operation of such a tribunal in harm’s way as violators of international law? Knowing the significant harm to our foreign policy interests connected with the Bush military commissions, why would anyone advise that we should prosecute a few aliens in a special military commission at Guantanamo? Are the advisers concerned that a special tribunal would only prosecute Muslims at a place that engenders outrage in the Muslim world and symbolizes inhumanity in much of the rest of the international community?

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

——–