By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006 .  Part I appears today.  Part II will be posted on Thursday, August 14.]   

Introduction

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court's Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system's chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court's Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court's Boumediene decision, the trial of Osama bin Laden's alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.

By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006.  Part II appears today.]   

II.  Beyond Military Commissions: Obstacles Facing Transition to a National Security Court

Recently, the academic and policy debate has begun to move towards the establishment of a national security court.  Both Presidential candidates have indicated interest in closing Guantánamo Bay and moving away from military commissions. Senator Barack Obama declared, "I will also reject a legal framework that does not work. . . . I have faith in America's courts, and I have faith in our JAGs.  As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions."[73] Senator McCain has declared that he would close Guantánamo[74] while still using military commissions for trials.[75]

Given these prominent positions, the academic and policy debate has begun to evolve.[76]  Professors Neal Katyal and Jack Goldsmith proposed a National Security Court,[77] and Professor Amos Guiora did the same.[78]  Andrew McCarthy identified why the current systems are inadequate.[79] Central to his analysis is the need to conduct interrogations and gather intelligence to prevent terrorist attacks, and the concomitant need to protect such information from unnecessary disclosure through the court system.[80]

Ben Wittes of the Brookings Institution set forth a detailed reform proposal.[81]  He cites to multiple examples, ranging from the 1993 World Trade Center Bombing trial to the trial of Jose Padilla, noting that these were perceived successes with serious underlying flaws.  Wittes suggests comprehensive reform centered on increased detention standards and a "trial regime that gives detainees enough process to satisfy the commands of the Constitution and garner international tolerance, if not quite admiration, yet at the same time facilitates the maximum number of criminal trials."[82]

Importantly, Wittes and other reformers recognize the need for protection of intelligence and generally set forth potential mechanisms for protecting information in a national security court.  Similarly, Professor Guiora proposes a system for terrorism trials which he terms a "domestic terror court" that would protect intelligence.[83]

Despite the robust nature of these proposals, obstacles exist which will prevent a transition to any of these systems.  While these solutions may work for new terrorism suspects, the proposals do not readily resolve the challenge posed by the current detainees, especially the eighty who have been identified as candidates for trial by military commission.[84]  If Congressional reformers decide to establish a new system, be it a national security court or abolishment of the military commissions, they will face significant obstacles during the transition period.

By Benjamin G. Davis[*]

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Professor McNeal's analysis begins by looking at two conflicting statutory provisions regarding military commissions: one provision allowing a political appointee as Convening Authority, and another providing trial counsel with enhanced protection from undue influence.[1] He sees this interaction as permitting politicization of the trial procedures. Professor McNeal urges the exclusion of political influence from the Convening Authority, by either placing a military officer with existing courts-martial responsibilities in this role or, alternatively, creating a joint Convening Authority. He also urges Congress to bolster the independence of the trial counsel so that they are not subject to the evaluation of higher-ups who have an interest in the outcome of trials. He urges transparent rulemaking, according to procedures that are at least as protective as those required for promulgating rules in courts-martial.

In the second part of his essay, Professor McNeal describes a series of obstacles impeding a transition to a National Security Court. He highlights the nonprosecution paradox as well as intelligence problems, and posits three transitional obstacles to a National Security Court: (1) challenges posed by accommodating speedy trial rights in light of security clearances and secured facilities, (2) authorities governing the methods by which intelligence is gathered and used, and (3) the phenomenon of executive forum-discretion.[2] Professor McNeal is admirable in avoiding "a clean slate view" by steering away from the tendency to be prospective, and instead focusing our attention on what kind of process should be in place for the eighty triable detainees currently in custody.[3] He urges that reformers must recognize the corrections identified, which he considers to be necessary for the continued use of military commissions. Today, post-Hamdan[4] and post-Boumediene,[5] Professor McNeal suggests how to improve the military commissions. Part I of this Essay asserts that the flaws in the structure of the military commissions are intentional and explains why such a flawed structure was established. Part II discusses the military commissions' third class processes. Part III explores the troubling example of the Hamdan military commission, and Part IV asserts that attempts to reform the military commissions will be fruitless. Part V suggests using a different perspective for establishing procedures for trying terror suspects.

By Morris D. Davis[*]

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Professor Greg McNeal was an academic consultant to the prosecution during my tenure as the Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba.  We had similar perspectives on many issues, and we still confer on detainee matters.  I concur with the views expressed in his essay.[1]  I write to address two issues Professor McNeal identified and comment on how they affect the military commissions.  First, I examine the case of the Nazi saboteurs—captured, tried, and executed in the span of seven weeks in 1942—and its influence on the decision in 2001 to resurrect military commissions.  Second, I assess the conflicting statutory provisions in the Military Commissions Act and the impact on full, fair, and open trials.

I.  Attempting to Repeat History

Professor McNeal argues that the administration chose military commissions to protect information collected for intelligence (intel) purposes from disclosure.  Safeguarding intel, particularly the sources and methods used to acquire information, was a key factor, but I believe the decision had a broader basis heavily influenced by a precedent-setting trial in 1942 that became the template for the President's Military Order of November 13, 2001.[2]

Shortly after midnight the morning of June 13, 1942, four men left a German submarine and came ashore at Amagansett Beach, New York.[3]  They wore military uniforms in hopes that if captured during the landing they would receive prisoner of war treatment.  Four days later, at Ponte Vedra Beach near Jacksonville, Florida, another group of four men did the same.  The eight men infiltrated the United States to execute a plan developed by the German High Command at the insistence of Adolph Hitler to attack factories, bridges, rail yards, and utilities to disrupt wartime production, intimidate the American public, and weaken the will to fight.  The men were selected because they had lived in the United States before and were unlikely to attract attention as they moved about the country committing sabotage.

Stephen I. Vladeck[*]

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One need not look far these days to find proposals for how to "fix" U.S. detention policy, especially with respect to the non-citizens detained as "enemy combatants" at Guantánamo Bay, Cuba.[1] In the aftermath of the Supreme Court's June decision in Boumediene v. Bush[2]—particularly its conclusion that the Guantánamo detainees have a constitutional right to judicial review[3]—such proposals have taken on an added sense of urgency, as commentators of all stripes grapple with the (now very real) possibility that such review will lead to the frustration and/or invalidation of existing policies.[4]

Within this burgeoning literature, though, the military tribunals convened at Guantánamo under the Military Commissions Act of 2006[5] (MCA) have received curiously short shrift. Part of the problem, I suspect, is that compared to the hundreds of individuals held at Guantánamo (and the thousands in U.S. custody elsewhere) who are not facing trial, the number of individuals potentially subject to trial by military commission is comparatively small. I also imagine that the relative neglect of the commissions is at least to some degree a result of the absolutism that pervades much of the commentary relating thereto: some view the Guantánamo commissions as categorically unconstitutional; some view them as both good policy and legally sound; some view them as the only way to deal with the thorny problems posed by international terrorism.

Fortunately, Professor McNeal falls into none of these camps. Rather, his thoughtful essay[6] balances a nuanced critique of the existing commission structure with an understanding of the difficulties Article III courts would face in trying the same defendants for the same offenses. Moreover, Professor McNeal is rightly skeptical of the increasingly common calls for a hybrid "national security court" to handle the prosecution of a class of terrorism-related offenses and offenders,[7] suggesting that there are significant obstacles in the way of any transition to such a model.