ANALYSIS OF DRAFT AND REPORT

National Association of Criminal Defense Lawyers

Military Law Committee

March 5, 2003

Department of Defense

MILITARY COMMISSION INSTRUCTION

Crimes and Elements for Trials by Military Commission

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I.	AUTHORITY - Paragraph 2:

The Military Law Committee [MLC] has grave difficulty in accepting the underlying premise of this "Instruction" that it is the Commander-in-Chief, or his delegate, who has the legal "authority" to define crimes and their elements. That is a quintessential legislative function. Indeed, Article I, § of the U.S. Constitution expressly provides that it is the Congress of the United States that has the enumerated power to:

"To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."

Make "Rules concerning Captures on Land and Water;" and

"To make Rules for the government and Regulation of the land and naval Forces;"1

That this is a power of Congress was settled by the Supreme Court early on in our history:

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.2

Notably, the Draft Instructions - released by the DoD General Counsel's Office but bearing the imprimatur of the Justice Department - do not cite or list Article 21, UCMJ as either a reference or authority for such. While we have no idea as to why they did not invoke that statutory provision, it may have to do with the limitations Congress imposed in Article 36, UCMJ, to wit:

10 U.S.C. § 836. Art. 36, UCMJ. President may prescribe rules:

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable.

Obviously by ignoring the UCMJ totally, they can thus ignore basic rights guaranteed by it and within the clear intent of Congress to insure.3

Justice Jackson's seminal concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), on the "power" of the President as Commander-in-Chief needs to be kept in mind here:

His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-
making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment. 343 U.S. 643-46.

Justice Jackson's analysis continues:

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers. 343 U.S. at 650-51 [Emphasis added].

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This contemporary . . . experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the "inherent powers" formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience. [footnotes omitted; emphasis added] 343 U.S. at 652

Equally as troublesome, in addition to the UCMJ articles referenced above, is the fact that Congress has spoken in this area with some degree of specificity, which from a Constitutional perspective would seem to further weaken any basis for an Executive attempt to create and define "crimes and elements." A quick computer search in Title 18, shows the following:

18 U.S.C. §§ 1091-93, Offense of Genocide;

18 U.S.C. § 2331 et seq., Offense of Terrorism,

§ 2331 contains the "definitions" which would seem to cover those now being held as "detainees;"

§ 2332a, Use of Certain Weapons of Mass Destruction;

§ 2332b, Acts of Terrorism Transcending National Boundaries;

§ 2332f, Bombings of Places of Public Use;

18 U.S.C. § 2338, Exclusive Federal Jurisdiction [this is interesting as it states that "The district courts of the United States shall have exclusive jurisdiction . . ." over "terrorism" cases].

18 U.S.C. § 2441, War Crimes.

§ 2441(c) defines "war crime" far more narrowly than does the Draft Instruction, viz., § 2441(c), adopts the 1949 Geneva Conventions; the 1907, Hague Convention IV [ "Laws and Customs of War on Land"]; Common Article 3, of the 1949 Geneva Conventions dealing with "non-international armed conflict]; and the 1996 Protocol on Mines, Booby-Traps, etc.

In sum, where the Constitution gives express and enumerated powers to Congress and Congress pursuant to that grant of authority has exercised it, such cannot be usurped or changed by Executive fiat which is exactly what this Draft Instruction does.

II.	"GENERAL" PROVISIONS - Paragraph 3.

There are some truly frightening provisions here that are the antithesis of our criminal and military jurisprudence. For example, Paragraph 3(A), states inter alia, "This document does not preclude trial for crimes that occurred prior to its effective date." This clearly raises the specter of ex post facto proceedings, since Paragraph 3(C), contains this unusual provision: "The absence of a particular offense from the corpus of those enumerated herein does not preclude trial for that offense." So, we have unknown offenses, and the concomitant "lack of notice" issue under traditional Due Process concepts, that presumably a Military Commission Trial Counsel will dream up, that is not subject to any ex post facto challenge. This raises, rather than resolves, some of the major "objections" that go back to the Nuremberg prosecutions,4 and at least as to the "notice" provision, may itself violate International Law. In applying the Laws of War, the Supreme Court has observed: "We do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution."5 If however, the Drafters are recognizing and applying traditional ex post facto prohibitions to the creation of crimes prosecuted by such Commissions, then that should be clarified and included within any applicable instruction.

III.	"APPLICABLE PRINCIPLES OF LAW" - Paragraph 4.

We do not know the source or origin of the "principles" of law here, but they are not Anglo-
American nor are they part of the Law of Armed Conflict - at least that generally accepted up until now. There is a complete burden of proof shifting here that is fundamentally antagonistic to our system of innocent until proven guilty. Here, Paragraph 4(B), states: "Conduct alleged to meet the elements found herein shall be inferred to be wrongful in the absence of evidence to the contrary." Instead of a prosecutor having to prove the "wrongfulness" of an Accused's conduct, the mere allegation of criminality now rises to an inference of wrongfulness, unless the Defense can bring forth "evidence to the contrary." I accuse you of being a terrorist, aiding and abetting al Qaeda, and you must prove the negative to be acquitted. That is not our concept of due process jurisprudence.

Another frightening concept is this: "Defenses potentially available to an accused under the law of armed conflict, such as self-defense, mistake of fact, and duress, may be applicable in certain trials by military commission."6 First, the clear implication is that the also might NOT be applicable is obvious, and second, who decides when the defenses will or will not be applicable? If there is a valid defense under international law, it must be applicable otherwise the "trial" is nothing but a charade.

Furthermore, the language implies that such "defenses" will be decided on an ad hoc basis - a concept that again flies in the face of established domestic, military and international law principles. Should that interpretation be what is in fact implemented, that then will raise an "equal protection" type of objection where one defendant is allowed to utilize a defense, whereas a similarly situated and charged defendant appearing before another tribunal, is not. That is not "fundamental fairness" as envisioned under international law concepts, nor is it a concept that has any applicability to our own domestic military laws and procedures.

Lastly, Paragraph 4(c)'s provision that there are no statutes of limitation, flies in the face of both domestic and international law, absent traditional offenses involving genocide or homicide. It also ignores the limitations contained in Title 18, U.S.C.

IV.	DEFINITIONS - Paragraph 5.

There definitions are troublesome for many reasons. For example, the CIA agent killed in Afghanistan would not have "combatant immunity" since he was not a member of our "armed forces," and thus - especially since he was armed and not wearing a U.S. military uniform, a lawful target under international law. We seriously doubt that this is what the drafter's intended, but it is one of the unintended results of their efforts to overkill.

The definition of "Combatant Immunity" may be in contradiction to established international law definitions of a lawful combatant if it is improperly limited to those members of the uniformed "armed forces." This should be clarified because it is clear that under established principles of international law, that "lawful combatants" may include both uniformed members of an armed force and qualifying civilians, such as those recognized under the levée en masse concept.7

The definition of "enemy" goes far beyond what anything in LOAC ever defined. Up until now, "terrorists" from the DoD perspective, were treated as international criminals, like the "pirates" of old. The Columbian drug cartels, the "mafia" and probably the "Hell's Angels" meet this definition, and theoretically they could be next to be tried before a Military Commission. The LOAC has never included non-governmental instrumentalities [NGI's] as the "enemy," and we cannot fathom how the Secretary of Defense can sua sponte and ex parte change customary international law when it certainly is not part of any of the Geneva or other Conventions on War.

The definition of the phrase, "In the context of and was associated with armed conflict" is a novel application of the traditional concepts of LOAC. It is defined to include "terroristic" organizations, the very thing Congress legislated in Title 18, U.S.C. Furthermore, under traditional concepts of international law and the LOAC, an "act of war" is something committed by a State actor, not an international band of criminals. Thus, this is an unprecedented expansion of both customary and well settled international law principles.

V.	PARAGRAPH 6, "Crimes and Elements."

The Military Law Committee did not have sufficient time or resources to examine each of the stated crimes and the elements furnished in view of the short response time. However, our position is and has been - consistent with our Constitutional objections noted above - that Congress has properly spoken as to both the crimes and their elements in the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., and in Title 18, U.S.C., as also noted above. International law and the LOAC recognize an "equal protection" type of argument that precludes unique or significantly differing interpretations of the law when dealing with prosecuting "war crimes." Thus for both consistency and fundamental fairness purposes, especially for crimes already defined under both domestic and military law, viz., rape, murder, terrorism, etc., that the existing statutes be utilized.

NACDL Military Law Committee Co-Chairs

Terri R. Z. Jacobs	Donald G. Rehkopf, Jr.	Jack B. Zimmermann

Zimmermann & Lavine	Brenna & Brenna	Zimmermann & Lavine

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