Military Commissions 3.0

By Dominika Švarc

Finding an alternative to the military commissions system for prosecution of certain terrorist suspects was one of the strongest lines in Barack Obama’s presidential campaign and it remained a top priority in the first moments of his presidency. With an executive order of 22 January 2009, he suspended all the ongoing military commissions trials pending the final decision regarding their future.

Ten months later, the infamous military commissions are still alive and kicking. Reluctant to create a whole new legal system for prosecution of terrorist suspects (for debates on alternatives, especially the national security courts, see e.g. here, here, and here), the Obama administration chose to amend the old one even though it has often been criticized as broken and beyond repair.

The new Military Commissions Act of 2009 is part of the National Defense Authorization Act for Fiscal Year 2010 that was signed into law by President Obama on 28 October. Without doubt, the new legislation includes important improvements of some of the fundamental due-process flaws plaguing the military commissions act passed by Congress in 2006. However, experts and human rights organizations (among them Human Rights Watch and ACLU) have already warned that the revised system still fails to meet the standards required in the US constitution and international law.

Among the most significant improvements of the old military commissions legislation is the absolute prohibition of evidence obtained by torture or “cruel, inhuman or degrading treatment” (§ 948r). In addition, only “voluntary” statements (with some exceptions) are admissible in commission proceedings (§ 948r(c)(B)). The combination of these two standards importantly raises the bar for procedural reliability and admissibility of evidence in comparison with the previous system. Other improvements include a requirement of experienced capital defense attorneys in death penalty cases, more resources for defence counsel and greater access to witnesses and evidence for defendants.

But many disturbing features remain. The element most strikingly reflecting the previous administration’s war-model approach to the fight against terrorism is the scope of military commissions’ personal jurisdiction. Subject to trial by military commissions are any “unprivileged enemy belligerents” (§ 948c), a term well established in the law of armed conflict (LOAC), as opposed to the “alien unlawful combatants” used in the old legislation). However, while the term itself may be consistent with the LOAC, its content is not. It includes not only those individuals who have been actively “engaged in hostilities against the US or its coalition partners” (§ 948a(7)(A)), but also those, who have “purposefully and materially supported hostilities against the US or its coalition partners” (§ 948a(7)(B)). In effect, the language of “material support” goes beyond the traditional understanding of the concept of “belligerents” to include persons who would be classified as “civilians” in terms of LOAC for the purpose of applying the principles of civilian protections, including immunity from military detention and prosecution by military tribunals (see a related discussion here). Consequently, the act still allows for military prosecution of terrorist suspects who are technically civilians under the LOAC and should be tried before regular civilian courts.

The definition also continues to specifically include members of al Qaeda (§ 948a(7)(C)), but by requiring a more explicit war nexus, the new act (at least on paper) no longer permits prosecution of terrorist suspects picked up outside of any armed conflict. Using the same words as the ICC statute, the act has limited the military commissions’ material jurisdiction to offenses “committed in the context of and associated with armed conflict” (§ 950p).

At the same time, and despite the Obama administration’s explicit opposition, the new legislation includes “material support for terrorism” (§ 950t(25)) on the list of offences prosecutable by military commissions. Again, such militarization of a regular civilian crime of material support has no clear basis in the LOAC and international criminal law, and is problematic from the US domestic law perspective as well (see Deborah Pearlstein’s take on that at Opinio Juris).

Not only does the new legislation maintain the war-model approach to the fight against terrorism, it also seems to endorse the idea that the “war on terror” is a perpetual one. Despite the administration’s specific request, the Congress didn’t include a sunset clause to set a time limit on military commission trials as a matter of law. They might thus well outlive Guantánamo (and the current administration), and apply to other terrorist suspects in the future.

It is worrying that the Obama administration seems neither ready to truly abandon the “terrible legacy of Guantánamo”, nor able to secure real improvements of the old system on the Capitol Hill. Applying the war paradigm apparently continues to be “exceptionally” necessary. Yet, it is hard to accept the alleged inevitability of a parallel substandard system in light of the benefits of prosecution via the US federal courts, which have already proven to be a perfectly effective avenue for prosecuting many terrorist suspects (145 cases to date) while balancing due-process protections with the requirements of national security.

Hopefully, the administration will at least in practice follow its signalled intention to pursue the federal courts option wherever possible. Half-hearted (though welcome) modifications of an inherently flawed military commissions system that still falls short of true justice will not help Obama to shake off the aura of illegitimacy created by his predecessor.

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About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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