Can this possibly be right?

by Kagro X

I know the bill (PDF) obtained by Marty Lederman at Balkinization, which is now making the (hushed-up) rounds of Washington, purports to be just an early draft of the Bush "administration's" draft of post-Hamdan curative legislation for the use of military tribunals. But I also know that the "administration" has little or no intention of conforming to the state of the law as you and I understand it. So I have to ask whether some of the provisions in there are just poorly-drafted mistakes, or intentional short-cuts.

Let's start with this one, already caught by Dave Glazier at Intel Dump, who points out:

The draft endeavors to formally define the Bush Administration coined term “enemy combatant,” but does so in a somewhat bizarre manner. After first declaring them to be persons who have violated the law of war, it further divides them into “lawful enemy combatants” – law of war violators who otherwise meet the Hague and Geneva criteria such as carrying arms openly whereas “unlawful enemy combatants” would specifically be members of al Qaeda or the Taliban. There are two fundamental problems with this definitional approach. First, it literally presupposes guilt, and second, “lawful enemy combatants” should merit full POW status whereas nothing in the draft seems to provide for that.

Here's how that provision appears in the draft. Tell me what you think it means if, for some reason, you're not buying Glazier's reading. For ease of understanding, strikethrough text is original bill language that has been removed, and underlined text is language that has been added. I don't know whose edits these are:

SEC. 102. 103 DEFINITIONS.

As used in this Act:

(4) (3) "enemy combatant," for the purpose of this statute, means a person engaged in hostilities against the United States or its coalition partners who has commited an act that violates the law of war and this statute. The term enemy combatant includes "lawful combatants" and "unlawful combatants." n individual (other than an individual found by the President or the Secretary of Defense to be entitled to status as a prisoner of war or as a "protected person" under Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949) determined by or under the authority of the President or the Secretary of Defense to

(A) "Lawful" enemy combatant include [sic] members of the regular armed forces of a State party to the conflict, militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war, and members of regular armed forces who profess allegience to a government or an authority not recognized by the detaining power be part of or supporting an international terrorist organization engaged in hostilities against the United States or its co-belligerants, including but not limited to al Qaeda, The Taliban, or associated forces;

(B) "Unlawful" enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict. Spies and saboteurs are traditional examples of unlawful enemy combatants. For purposes of the war on terrorism, the term Unlawful Enemy Combatant is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. to have committed a belligerent act in aid of such an organization so engaged, or

(C) to have directly supported hostilities in aid of such enemy armed forces.

So you'll notice, of course, that Glazier is exactly right about this bill presupposing guilt. It's circular. This is a bill that's supposed to cure the constitutional defect of the "administration's" previous incarnation of the military tribunals under which detainees were to be tried, and this is how it does it: by determining how much justice you're entitled to based on what they think you're guilty of. In other words, in the trial to determine whether or not you're a member of the Taliban or al Qaeda, the procedure afforded you will be decided based on the fact that you're a member of the Taliban or al Qaeda.

Hmm.

Just as puzzling is the next section:

SEC. 103 104. AUTHORIZATION FOR MILITARY COMMISSIONS.

(a) The President is authorized to establish military commissions for the trial of alien enemy combatants for violations of the laws and customs of war and other crimes triable by military commissions as provided in chapter 2 of this Act. The grant of this authority should not be understood to limit the President's constitutional authority to establish military commissions on the battlefield, in occupied territories, or in armed conflicts should circumstances so require.

(b) Military commissions shall have the authority, under such limitations as the President or Secretary of Defense may prescribe, to adjudge any punishment not forbidden by this act, including the penalty of death, imprisonment for life or term of years, payment of fine or restitution, or any other lawful punishment impose upon any accused found guilty after a proceeding under this Act a sentence that is appropriate to the offense or offenses for which there was a finding of guilt, which sentence may include death, imprisonment for life or term of years, payment of fine or restitution, or such other lawful punishment or condition of punishment as the Constitution shall determine to be proper.

So how are you reading that? Sec. 104(a) appears to repeat a theme that runs throughout the bill: eliminating the word "alien" from the phrase "alien enemy combatant." It's clearly the intent of the drafters to subject U.S. persons to the same standards, if they're designated "enemy combatants." And we know from Sec. 103 what happens to them. They're guilty.

And how do we know this? Sec. 104(b), which helpfully eliminates the necessity that punishment be premised on actually having a proceeding and finding the accused guilty.

Go ahead, read it again. "Military commissions shall have the authority ... to adjudge any punishment not forbidden by this act, including the penalty of death, imprisonment for life or term of years, payment of fine or restitution, or any other lawful punishment." Period. What's taken out? All that stuff about imposing it on any accused found guilty after a proceeding.

Hmm.

Wacky sounding stuff. But also a little too familiar. In fact, the whole bill has a very strange feeling to it, as though it were written first as a memo of some sort, with little or no effort at all made to put things in traditional legislative language or format, except for the sections which are borrowed entirely from existing statutes.

The "Findings," contained in Sec. 102, are for the most part a rote recitiation of the "administration's" version of background of the "War on Terror," something I recognized as stock language that the DoJ has trotted out for briefs in the various "state secrets" pleadings around the country. And just what is the "administration" doing dictating findings to Congress, anyway?

But more interesting, I think, is what some of the deleted language may tell us. For instance, the definition of "enemy combatant," which prior to the revisions made in this draft, read:

"enemy combatant" means an individual (other than an individual found by the President or the Secretary of Defense to be entitled to status as a prisoner of war or as a "protected person" under Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949) determined by or under the authority of the President or the Secretary of Defense to be part of or supporting an international terrorist organization engaged in hostilities against the United States or its co-belligerents, including but not limited to al Qaeda, the Taliban, or associated forces; to have committed a belligerent act in aid of such an organization so engaged, or; to have directly supported hostilities in aid of such enemy armed forces.

Now, it's clear why that text has been struck out. The claimed source of the authority of the President and/or the Secretary of Defense to designate any individual an "enemy combatant" on their say-so has been undermined by Hamdan. But if this bill is the "administration's" proposed response to Hamdan, what's language like that doing in there, even in a first draft? Why would your starting point, even for something that gets struck out almost immediately (or what we imagine to be immediately, anyway), be the very approach that the Supreme Court had just told you did not pass muster?

Also note that the deleted language refers to "the United States or its co-belligerents," whereas the inserted text uses the "administration's" more recent and preferred phrasing, "the United States or its coalition partners."

What "coalition?" Why, the once-famous "Coalition of the Willing," I'm sure. But it's only because the two different formulations are in such close proximity that I noticed the distinction, and it made me wonder: was the "first draft" language that was deleted from this bill something that was proposed internally, but shelved at some point in between the wars in Afghanistan and Iraq? Isn't that when the terminology would have morphed from "co-belligerents" to the more grandiose sounding "coalition partners?" And if so, is that language's (inadvertent?) inclusion in the first draft of this bill an indication that the "administration" has known for a long time that it needed, at minimum, Congressional approval for its tribunals, and that it had at one time considered seeking it?

Comments

[freepatriot]

there's an "Alice in Wonderland" quote that fits this situation

something about "it would be if it wasn't so, but it is so, so it ain't

pretzel logic from a man who nearly died while eating a pretzel

whodathunkit ???

[janinsanfran]

These guys don't do law; they do fiat.

[emptywheel]

Actually, I noticed the same thing about the switch to coalition partners. And I think there's a different reason for it.

In the war in Afghanistan, our co-belligerents are NATO and some other countries. In teh war in Iraq, our co-belligerents are the UK and one or two more countries.

In the war on Terror, our coalition partner is definitely Israel, as well as some of the European countries (say, Germany) that don't have troops in Iraq. By making it coalition partner, it allows us to include Hamas, Hezbollah, and Muslim Brotherhood, as well as any terror cells in Europe.

[freepatriot]

so has anybody in the bush administration heard of the concept of "Divide and Conquere" ???

the terrorists are doing a great job of dividing "the Coalition"

is Blair the next victim of bush's folly ???

what do we do if Britian pulls out of Iraq ???

[JohnLopresti]

I think Marty's copy of the draft law creating presidentially authorized military commissions, is a copy that emerged after the administration's congress strategizers had completed their task but the implementers were just beginning their part of the overall project of producing the final sausagelike draft bill. As it appeared near the end of the congressional week, likely it went home with a lot of folks and will reappear next week more fully fleshed. EW is great on text analysis; ew, read section 102, if you are interested in the congress strategy part.

On section 103, I think that is the beginning of the ongoing work; i.e., maybe some military lawyers are working on this, as a bridge to take out what UCMJ offers that the president still wants to exclude; and doing this treading the slippery zone which approaches what the Supreme Court wrote in Hamdan, and other cases about the detainees both at Scotus and other courts. I would expect exJudge Luttig to have a resourceful file about some of these matters, but he is probably writing memoirs based upon it, while he works in a corporate aerospace legal counsel post for a while.

I, too, found inexplicable tautological places, but the work product is a draft. I think the document represents severeral authors working with a blue pencil, and a word processor for the cut-and-paste.

One contradiction I thought appeared was first defining the detainees as stateless, but then declaring they were subject to the laws of war; and further saying their parent organizations were also stateless but that CA3 did not apply to such stateless people because the detainees' parent organizations were not signatories to the Geneva conventions.

I think this is where congress can contribute to crafting a linear bill which reads, rather than the raw draft we have now.

Some of the edits I noticed of concern in the proposed draft include section 225(a) which I understand to reduce from a unanimous vote to a 3/5 majority the proposed vote to be required on the commission to approve summary execution of the worst detainees.

I am glad you folks are contributing to this difficult task of helping understand where to take this process. Clearly the government has been moving in many areas for years, developing momentum and advanced positions; so there are many obstacles and pitfalls to identify, and help congress define in its attempt to provide a controllable instrument for the president. Handing the president a law he can abide by will be a real challenge for congress, especially given the context of this being an administration that has a signing statement history longer than the entirety of all prior administrations in aggregate. I have enjoyed the history reading, though, as some of the footnotes in the ABA study on signing statements by prior presidents link to some pretty interesting websites. Politics seem to change little at baseline; issues morph; society seems to mature; but this, as all times, is a time of a test. I am glad you are helping us with the homework.