POSITION OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

ON THE DRAFT

MILITARY COMMISSION INSTRUCTION

Comments will be made using the headings in the draft Instruction.

I.	Authority

The United States Constitution invests the power to define and punish "offenses against the Law of Nations" with the Congress. It also gives the legislative body the authority to make "rules concerning Captures on Land and Water." The United States Supreme Court ruled on this matter two hundred years ago in Talbot v. Seeman, 5 U.S. 1, 28 (1801). Further guidance was given in more recent times in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

The bottom line is that the President does not have the authority to unilaterally "legislate" crimes and their elements.

II.	General

The overbreath of the policy statement that "this document does not preclude trial for crimes that occurred prior to its effective date" is alarming because of its ex post facto implications. The underlying basis of the draft Instruction is that it is merely illustrating recognized principles of the common law of war or of the law of armed conflict. If that is true, the questioned statement should be rewritten to specifically state "does not preclude trial for crimes then recognized by the common law of war that occurred prior to . . . "

III.	Applicable Principles of Law

While the discussion of the element of wrongfulness acknowledges that conduct must be wrongful to constitute an offense, it then improperly shifts the burden of proof on this element to the accused by stating, "Conduct alleged to meet the elements found herein shall be inferred to be wrongful in the absence of evidence to the contrary." The emphasized language contradicts the requirement that the prosecution has the burden to prove each element beyond a reasonable doubt.

There is a difference between requiring a legal defense to be raised by the accused (after which the burden is on the prosecution) and the inference of wrongfulness in every case in the absence of evidence to the contrary. Placing the burden of going forward on lawful justification on the accused is appropriate, but requiring the accused to disprove the wrongful nature of his conduct or risk the inference of wrongfulness turns the American standard of criminal justice on its head. Under this rule, no accused could rest behind the prosecution, and argue that the prosecution had not proved its case.

As to the applicability of recognized legal defenses, the statement that "Defenses potentially available to an accused . . . may be applicable in certain trials by military commission" surely was intended to mean "applicable in certain offenses subject to trials by military commission." In other words, the defense of self-defense may not be applicable to a certain offense subject to trial in any court or commission, therefore it would not apply. However, it cannot be intended that the applicability of valid defenses to certain charges can be determined on an ad hoc basis. To do so could create the inequitable situation where one commission could declare a defense applicable while a different commission, trying the exact same fact situation and allegation, could declare the defense not applicable.

The foregoing policy statements should be clarified to state the exact intent of the statements.

Finally, the lack of any statute of limitations, for any offense, is violative of well-established United States military and civilian law, and international law. Those offenses for which no statute of limitations normally exists, such as murder, genocide, etc., are not the subject of this comment.

Conclusion

This position is provided for the sole purpose of aiding the drafters of the Instruction to better make the Instruction comport with the basic fundamental components of American criminal justice systems. To do otherwise will undoubtedly subject American prisoners of war in future conflicts to inhumane and unfair treatment, using the American military commission experience as justification.