The Military Commissions Act of 2006 bases its process for trying alien unlawful combatants on the better-known process for military courts martial. I have handled hundreds of criminal defense cases in state and federal courts and courts martial. Military courts martial are not the same as civilian criminal courts. Imagine you are shopping and are detained by store security for shoplifting. Under the courts martial and MCA you would be assigned a lawyer who works for the store to defend you. The judge would be corporate counsel, and the jury would be five store executives.
The MCA tries to deal with times when U.S. troops take prisoners on a foreign battlefield facing irregular militia, sometimes called guerrillas, not identified with any state. These prisoners could be a very valuable source of information. They may also have done things that violate the law of war. How do you process them? The Geneva Conventions were created for the historical situation where troops obedient to a foreign power are captured in combat with U.S. forces. That is unusual these days, the last instance being what Fox News called the “mother of all surrenders” in Gulf War I.
If you capture irregular militia wearing no identifiable markings, such as uniforms, what do you do under existing international law? Spies fit that category, and summary execution has been their lot throughout history. The MCA was designed to provide a reasonable judicial forum for such people. This is a good thing, which those concerned with human rights and civil liberties should applaud. The problem comes when the suspects are detained indefinitely in proximity to the U.S. under its custody. Then denying them habeas corpus (a court challenge to improper imprisonment), as the act does, seems much less reasonable. If their status cannot be determined in the foreign theater of combat, how is indefinite detention appropriate? All evidence is in the foreign theater, and any reasonable defense would require data in the form of unavailable witnesses or expurgated written materials prepared under the MCA to protect national security.
The MCA addresses some problems while creating others, the fate of most legislation. There needs to be a way to judicially manage unlawful alien combatants. Does this act do that in a way that eliminates more problems than it creates? A much more serious concern is that this act as written could be applied to U.S. citizens acting in the United States. While that may not be the intention of the act, the clear reading of it allows such an interpretation. Here is what it says:
‘‘§ 948d. Jurisdiction of military commissions
‘‘(a) JURISDICTION—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS
DISPOSITIVE—A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.”
So if a tribunal created by the Secretary of Defense declares you to be an unlawful alien enemy combatant, you have no recourse and can be tried under the act. This is either a poor piece of writing, or a camel’s nose under the tent. Depending on your viewpoint, it could be either. The only viewpoint under which it is not a problem is one that states the government only acts in our best interests and never subjects the innocent to negative experiences.
The United States needs a way to process irregular fighters it captures on the battlefield to remain a society governed by law. If we do not, we send the message to our troops that prisoners are not desired. Worse, we could send the message that the welfare of enemy combatants is more important than the welfare of our own troops. The natural result of either message is not one that a civilized society wants.
The MCA can be a temporary barrier to that abyss. Unfortunately, it over-reaches and endangers the liberty of American citizens. The problem can be fixed by a careful amendment. It can, and it must.
Duane Ruth-Heffelbower, a former JAG officer in the United States Air Force, is director of graduate academic programs in peacemaking and conflict studies at Fresno Pacific University.