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2006 Legislative Priorities
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| Background | Status | ABA Policy | Key Points | Links |
On November 13, 2001, the President of the United States issued a military order addressing “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.” The order authorized trial, exclusively by military tribunal, or commission, of “individuals subject to this order.” On March 21, 2002, the Department of Defense (DOD) issued detailed rules implementing the President’s order. Under the DOD rules, conviction by a military commission would require proof beyond a reasonable doubt, defendants would have the right to counsel of their choice, and death sentences would require unanimity among the commissioners. The rules of evidence were relaxed and appeals are to a military panel, not an independent appellate body. However, on June 28, 2006, the U.S. Supreme Court invalidated the commissions as a violation of the Uniform Code of Military Justice and Common Article 3 of the Genenva Conventions.
The U.S. military began holding special tribunals at Guantanamo Bay to allow detainees to contest their “enemy combatant” status. The Pentagon established Combatant Status Review Tribunals following the U.S. Supreme Court’s June 2004 decision in Rasul, et al. v. Bush affirming that the detainees at Guantanamo have a right to challenge their detentions in U.S. courts.
The FY 2006 Defense Authorization bill included an amendment sponsored by Senators Lindsey Graham (R-SC) and Carl Levin (D-MI) that eliminated habeas corpus review for individuals detained at Guantanamo Bay. The Graham-Levin Amendment effectively reverses the prospective application of the 2004 U.S. Supreme Court decision in Rasul v. Bush that ruled that federal courts have jurisdiction to consider petitions for writs of habeas corpus from Guantanamo detainees under the federal habeas statute. The Graham-Levin Amendment, also referred to as the Detainee Treatment Act of 2005, instead replaced the habeas regime with limited judicial review of combatant status determinations and for convictions by military commissions.
When the military commissions were in place, the Defense Department invited the ABA to send an observer to Guantanamo Bay for the trials of several terrorism suspects before military commissions. Neal Sonnett, chair of the ABA Task Force on the Treatment of Enemy Combatants, represented the Association at preliminary proceedings held at Guantanamo Bay in September 2004.
On November 12, 2004, a federal district judge in the District of Columbia blocked the trial of a Guantanamo detainee, holding that the man may be tried for war crimes only "by a court-martial duly convened under the Uniform Code of Military Justice." The Judge found that the Geneva Conventions require a court martial for any detainee who is a prisoner of war, or whose status is in doubt. The Judge said the Administration did not give the detainee the appropriate proceeding required under the Conventions. Hamdan v. Rumsfeld, No.04-1519. The Department of Justice appealed the decision and a three-judge panel of the U.S. Court of Appeals for the DC Circuit reversed the decision and ruled that the Congress had authorized the military commission and that the Geneva Conventions did not confer a judicially-enforceable right. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
In March 2006, the U.S. Supreme Court considered the legitimacy of the Guantanamo military tribunals when it heard oral arguments in the Hamdan v. Rumsfeld case, No. 05-184. On June 28, 2006, the Court held 5-3 that the structure and procedures of the administration’s military commissions, as convened to try Guantanamo prisoners such as the petitioner, Salim Ahmed Hamdan, violate both the Uniform Code of Military Justice and the Geneva Conventions. In addition, the Court determined that the Detainee Treatment Act did not strip the federal courts of jurisdiction to hear habeas corpus petitions by Guantanamo detainees that were already pending when the law was adopted. Hamdan v. Rumsfeld No. 05-184.
In the wake of the Supreme Court’s decision in Hamdan, the Congress held a number of hearings considering how the new military commissions should be constituted. When those hearings were initiated, former ABA President Michael Greco wrote to members of the Senate Judiciary Committee, the Senate Armed Services Committee and the House Armed Services Committee to share the ABA’s views on this issue. In developing a legislative proposal regarding military commissions, he encouraged them to rely to the greatest extent possible on the respected and tested framework of the UCMJ and to fully comply with our international treaty obligations. The ABA also urged the Committees to be particularly sensitive to the need to preserve and protect the attorney-client privilege against any intrusion into communications between detainees and their lawyers.
As Congress acts within the next few weeks on military commission authorizing legislation, the ABA will continue to advocate for a fair process with basic minimum rights for detainees that will inspire public confidence in the administration of justice. In the House, the Armed Services Committee has reported out H.R. 6054 which largely resembles the Administration's proposal. On September 20, 2006, the House Judiciary Committee initially voted to report the bill adversely to the House but then reported the legislation favorably in a subsequent vote. ABA President Karen Mathis wrote a letter to all Members of the House of Representatives on September 19, 2006 expressing the Association's opposition to this legislation because it departs from the well-test standards of the UCMJ and attempts to redefine the United States' existing treaty obligations in the treatment of detainees. Further, this legislation would remove all detainee habeas cases from judicial review, which the ABA strongly opposes. For similar reasons, the ABA policy does not support Sen. Bill Frist's legislation in the Senate, S. 3861.
In brief, the ABA has adopted policy calling upon the President and the Congress to assure that the law and regulations governing the use of military tribunals will not be applicable to U.S. citizens, lawful aliens, and other persons lawfully present in the United States; not be applicable to cases in which violations of federal, state, or territorial laws, as opposed to violations of the law of war; not permit indefinite pretrial detention of persons subject to the order; require that the procedures for trials and appeals be generally governed by the Uniform Code of Military Justice (UCMJ); and require that the procedures comply with Articles 14 and 15(1) of the International Covenant on Civil and Political Rights, including provisions regarding prompt notice of charges, representation by counsel of choice, confrontation and examination of witnesses, and an independent and impartial tribunal, with the proceedings open to the public.
The ABA has also adopted policy that urges the Congress, in cooperation with the Executive Branch, to establish clear standards and procedures governing the detention and treatment of enemy combatants and to consider how national policy set by the U.S. may affect the response of other nations to future acts of terrorism.
The ABA adopted additional policy in August 2003, relating to the conduct of military commission trials. In brief, the policy urges Congress and the Executive Branch to ensure that all defendants in any military commission trials have the opportunity to receive the zealous and effective assistance of civilian defense counsel.
- We must protect the rights afforded in the Constitution and
the delicate balance of power the Constitution provides among the branches
of government during times when it may seem popular or expedient to
sidestep basic Constitutional values.
- Military tribunals should not be allowed to encroach on these
values, which underlie our nation’s power, our role in the world
scheme, and our democratic way of life.
- The ABA recommendations seek to balance practical and legal
concerns regarding trials of terrorist war criminals, and to preserve
traditional core values of the American justice system.
- If the world is to deem these tribunals as “unbiased,”
and if these trials are to viewed as “full and fair,” then
the rules of procedure and evidence should comport with the principles
and rules applied in court-martial conducted pursuant to the UCMJ and
with basic international norms.
- The use of notice-and comment rulemaking procedures for military tribunals, while not compelled by current law, is in the public interest, will generate thoughtful and constructive comments from a variety of perspectives that will be helpful to the Defense Department, and will lead to improved public confidence in the result both in the U.S. and internationally.
Other Links
Council
on Foreign Relations
The National Institute of Military Justice
Staff Contact: Kerry Lawrence, Legislative Counsel
Last Updated: September 13, 2006