Cross posted from The Nation
Early this week, judge advocates halted two prosecutions in the Guantánamo military commissions established under the 2006 Military Commissions Act (MCA). This is not the first setback the Administration’s second-tier court system has hit; the Supreme Court invalidated an earlier iteration of the commissions in 2006. And it won’t be the last. But while this week’s setback likely will be speedily surmounted, it casts an unexpected light on the MCA’s real purposes, and what’s at stake when the Bush Administration plays politics with national security.
Understanding the significance of this week’s ruling means delving into a bit of procedural arcana. The devil in the MCA is, almost literally, in the details—and unless we attend closely to the rococo details of the statute, we’ll miss the ways in which the Administration intends to slowly erode our liberties.
At the beginning of this week, the military commissions’ two judges—Army Col. Peter Brownback and Navy Capt. Keith Allred—dismissed charges filed against Omar Khadr and Salim Hamdan. The rulings focused on a question of categorization—basically, the judges found that Khadr and Hamdan had been wrongly classified. But how did this happen?
The MCA, which created the military commissions, states that only an alien who is an “unlawful enemy combatant” can be tried in a military commission. It also defines “unlawful enemy combatants” in tremendously sweeping terms to include anyone who has “materially supported hostilities.” Many civil libertarians, including myself, expressed grave concerns about the scope of this provision. Read in tandem with recent Supreme Court cases, it might be taken not merely as a gateway to trial by military commission but also as a sweeping new executive detention authority.
The MCA doesn’t say how a person gets designated as an “unlawful enemy combatant.” But all except one of the detainees at Guantánamo have already all been classified as enemy combatants by a procedure known as a CSRT, or Combatant Status Review Tribunal. (The one exception is a prisoner recently transferred to the base.) CSRTs are shoddy summary procedures in which the detainee has barely a role and cannot respond to the secret evidence used to detain him.
Problems arose this week not because of the flaws in the CSRT procedures but because the definition of “enemy combatant” that the CSRT uses isn’t the same as the definition of “unlawful enemy combatant” in the MCA. Judges Brownback and Allred focused on this divergence and basically told the military that it couldn’t fit a square peg in a round hole: A person designated by a CSRT as an “enemy combatant” isn’t an MCA-compliant “unlawful enemy combatant.”
Nevertheless, Hamdan and Khadr likely qualify as “unlawful enemy combatants” under the MCA’s absurdly sweeping definition. So the likely next step will be a do-over. (And a do-over appears easy: The MCA allows a CSRT or “another competent tribunal” to do the designation.) This stumble for the commissions, in short, is unlikely to turn into a fall.
At one level, this is just another story of Bush Administration incompetence: No one looked at the Pentagon’s rules when they were drafting the MCA. Today, we find out there’s a technical mismatch. Just another screw-up, right?
Well, no. It’s more than just peculiar: The MCA was enacted to allow the military commissions to go forward. And yet the provision that couples the detention system and the new military commissions wasn’t carefully drafted.
But this is simply implausible in this situation. A tremendous amount of care went into the drafting the MCA, as one glance at its elaborate provisions shows. A great deal of care, for example, went into giving government torturers and their bosses retroactive immunity—including through the specification of the precise month and day that the immunity would kick in. In a statute drafted with tremendous care—and word-by-word White House editing, I do not doubt—the disparity is not just evidence of familiar incompetence: It is evidence of something far more troubling.
In obtaining a broad definition of “unlawful enemy combatant” at a time of partisan panic and electoral heat, the Administration has laid the groundwork for justifying future detention operations on firmer legal grounds. It is stashed away as a weapon to be leveled against the basic human liberty from governmental detention. Today, the definition may be a gateway to the military commissions—but that was always a secondary end. In the heat of crisis, the same provision may well be invoked for far, far more.
After all, military commissions function as a mere auxiliary to the present detention system. Consider more closely the cases of Khadr and Hamdan. What do they win by winning this week? A return ticket back to Guantánamo’s endless hell of cages, beatings and suicide. Just because they cannot be tried, argues the Administration, doesn’t mean they cannot be held—even indefinitely.
Any victory for a detainee in a military commission, indeed, is a hollow one so long as the government asserts authority to detain them indefinitely regardless of whether they are convicted in a military court.
There are other bits of the MCA that betray a gap between the White House’s claimed need for speed and the facts on the ground. Take interrogation rules: Standing in the White House surrounded by 9/11 family members, President Bush solemnly declared the “urgent” need for new law because of the CIA’s need for new interrogation rules. The need was urgent, argued Bush, because the Geneva Convention rules about interrogation were “vague,” and the CIA desperately needed guidance.
But vagueness wasn’t the problem and the need wasn’t pressing. In February 2002, the Administration had rejected the Geneva rules in favor of an open-ended standard of “humane” treatment. As Fritz Schwarz and I have argued, this standard meant nothing: What was “humane” depended on a mushy “all things considered” approach that allowed executive officials to override a detainee’s dignity if they thought the need compelling enough. And the Administration used this vagueness to promote and put into practice harsh measures like “cold cells” and “waterboarding.”
And there was no rush either. The CIA is still waiting for an executive order that sets out new interrogation rules and new limits on coercive interrogation. The forward-looking changes to the antitorture rules were no response to immediate needs.
Consider this: If—heaven forbid—another attack were to occur, think about how much easier it would be to use this new statutory framework to secure a new and harsher set of coercive interrogation rules. That’s the situation the MCA sets up.
What this week’s rulings show is that the White House’s protests about the urgency of the MCA were false and that the Administration was going for bigger fish. It was laying the foundation of a far broader detention and coercive interrogation policy for the future. And in large part, this effort has succeeded.
This is why the MCA needs to be rolled back: It is far more than a piecemeal erosion of the rights of Guantánamo detainees. It is the spearhead of a more sustained and long-term incursion on all our civil liberties. Senator Christopher Dodd was one of the first to introduce legislation pushing back against the MCA. Many pieces akin to his bill have been introduced in a piecemeal fashion—most important the restoration of habeas corpus—but none is as comprehensive as Dodd’s bill.
There’s no chance Dodd’s bill will pass this Congress, but the votes to overcome a filibuster, let alone a veto, just aren’t there. Nevertheless, it should be passed into law as soon as politically feasible. Pieces of it—such as habeas restoration—are getting some significant attention, although to date not enough. (And for this Congress to dissolve without restoring habeas corpus would be a heavy strike against its Democratic leaders.) It is Congress today that must fix the structural damage it inflicted in the MCA—and the quicker it does so, the safer all our liberties will be.