DoJ Staff Incompetence: Illegal Draft Military Commission Bill
The draft bill on military commissions is illegal and wholly defective. Despite the Hamdan reminder of Geneva requirements, the Department of Justice has failed to heed the Supreme Court’s wisdom.
There are significant problems with applying military commissions to civilians. This bill establishes flawed procedures and provides no suitable remedies for abuses under the Military Commission. There are some disturbing, recurring trends at the core of the draft military commission bill. The flaws with this bill cannot be taken in isolation, The draft bill well illustrates the incompetence within the Department of Justice.
This Attorney General cannot be trusted to provide sound leadership or legal counsel to the United States, nor can he be relied upon to act as the Chief Law Enforcement Office in the United States Department of Justice. The Attorney General has failed in his 5 USC 3331 oath.
The President under the UCMJ is given the power to make rules, so long as they do not violate the Constitution. It is ideal and required that the Geneva Conventions are applied: The Judicial guarantees afforded to civilians under the Constitution are afforded to military personnel. This draft bill fails on both counts:
This draft bill destroys and fails to recognize basic rights. When basic rights are not recognized, this makes the system of jurisprudence arbitrary and illegal. The procedures in this draft bill are illegal.
This draft bill:
The President may not do anything that violates the Constitution. This bill does just that: Denies to prisoners the procedures and rights afford under our system of justice. UCMJ Article 36 gives the President is given the power to make any rule or procedure under the UCMJ so long as it is consistent with the Constitution. This bill illegally gives the President and Secretary of Defense discretion to define procedures that violate the law, contradict the UCMJ, and wholly defeat the notion of justice.
The UCMJ is premised on the notion of fairness and the appearance of fairness. This draft bill turns the situation on its head: Compels us to accept what is not fair on the basis of what is not lawful. This draft bill creates the unsustainable legal foundation for war crimes and other abuses against Prisoners of War. This bill sends a clear signal: Hamdan despite it being a final opinion of the highest court, is not something the Department of Justice has being to seriously contemplate, much less digest or fully incorporate into their jurisprudence.
DoJ Staff Incompetence: Failing to Coordinate Legal Issues
Recall what we’ve learned with the DoD General Counsel, Haynes. He testified during his Senate Confirmation hearings for a seat on the bench that he fully coordinated the torture memos with the Judge Advocate Generals. However, the JAGS said that they never saw the DoD General Counsel memoranda.
Put aside the issue that the DoD General Counsel may have mislead the Congress while under oath. The core issue is that there is a consistent partner between what was done
In all seven  instances:
This DOJ Staff is fully supporting an agenda-driven approach to the law; and totally disconnected from its primary obligation: A constitutional-approach to the law. The problem is that this Congress, despite the many samples refuses to review the matters, and does nothing to challenge DoJ’s reckless approach to the law.
The problem is that the more we learn, the more we learn the same. Take 9-11: Now in 2006 we learn that the 9-11 Commission had reservations about the testimony of witnesses. Rather than provide that information to the FBI for investigation, the Commissioners were silent on these issues in their report.
The public has been deceived, not just by the Administration, but by those that were supposedly charged to independently review the matters.
The Trends Continue With The Draft Bill
We’ve seen what the DOJ Staffers will do when given the time. This draft bill is clear evidence the DoJ Staff, as it did with the FISA, is picking and choosing words, without any compression of the law or requirements. As we speak, it is likely the Department of Justice, as it has done with FISA, will manufacture a host of excuses to explain away the requirements; or pretend that the non-compliance with Geneva obligations is the opposite.
We no longer need to given them a second or an inch to do the same. Hamdan was the final word. The public should reasonably conclude that the DOJ Staff is incompetent, reckless, and wholly incapable of interpedently ensuring that its operations, plans, and other work products are remotely related to the law. These are serious issues. The DC Bar Rules of Professional Conduct finds that there can be sanctionable violations when DoJ Staff Attorneys misstate the law, as is the case here.
This draft bill is not a legal bill; nor does it show any evidence the DOJ Staff has correctly stated any law. This work produce warrants the immediate attention of the DC Disciplinary Board and the American Bar Association: This is unacceptable, and demonstrates the DOJ Staff is poorly led, reckless, and deficient in their otherwise requirement to demonstrate competence to fully comply with their 5 USC 3331 obligations to protect the Constitution.
This bill shows the DoJ Staff does not comprehend the rule of law, Constitutional requirements, Supreme Court precedent, or international treaties. IT would be far more instructive and productive to take a random survey of anonymous bloggers, and we might have a higher chance of finding a coherent legal argument that this trash thrust upon the political landscape.
Rewriting Rules Of Evidence: Illegally Affecting Ongoing Litigation
The heart of the problem is this DoJ Staff and Congress have illegally attempted to draft this bill, while there is ongoing litigation. The abuses have already been committed. The prisoners have already been denied their rights. These procedures are not simply defective, they fail to solve the problem, while at the same time attempt to create rules to justify additional abuses.
At the heart of the detention problem in Guantanamo is the rude reality: People have been detained on the basis of dubious evidence. Evidence has been classified not to protect sources, but because there is no evidence; the Government does not want to realize the information not because of national security, but because the case file is empty.
Look closely at the draft bill and you will see a major inconstancy. On one hand:
Here are the issues:
Bluntly, nothing is adding up. Indeed, the Padilla Court has asserted the same: That the evidence is cant.
Here were are five years after Sept 2001, and the government has yet to review these cases in masse. There are hundreds of prisoners that have not been detained, have not had a trial, yet the government says they’re guilty of something.
Fine: Put them on trial as war criminals for engaging in illegal war. But the government wont do that because it wants to “protect something.” Well, why not redacted that?
The only reasonable conclusion is that the issue isn’t’ whether the information is or isn’t classified; but that the underlying allegations cannot stand the scrutiny of the courts; and that there is no evidence.
Classification To Hide Illegal War Crimes
No other conclusion is reasonable. Indeed, it is this hand waving by DoJ Staffers over issues of “national security” that doesn’t add up when we look at FISA. The issue is simple:
There is nothing else to review or prove.
Yet, rather than permit review, this DoJ Staff keeps arguing that the situation is classified. That is not correct. ORCON is part of the Executive Orders. In order for something get credibly classified, that information has to be unrelated to illegal conduct.
Yet, we already know the NSA surveillance was illegal. The only reasonable conclusion is that the information related to that activity is not lawfully classified.
Thus any claim by DoJ that the issues are “Secret” or “classified” or “privileged” are dubious.
Rather, as is the case with the Guantanamo prisoners: There have been violations of the requirements; and the DoJ wants to hide the situation, deny evidence, and not permit the public to comprehend the scope of the DOJ Staff Attorney complicity in this illegal conduct.
Take the broad view: The same abuses committed under FISA, will be permitted under this draft bill:
These are fundamental issues about American jurisprudence. The issue is what Americans should require, expect, and reasonably demand under this Construction. It makes no difference what excuse the courts give to ignore this illegal conduct; the issue is that we have agreed to work with this government, and not use violence to remove them from power; in exchange they have promised to follow the law, respect our rights, and then have the trust of secrecy to engage in activity on our behalf.
The problem is that they have abused the power, violated rights, done illegal things, and abused the deference of secrecy we have afforded them. Then to boot, rather than correct the problem, this government is targeting people for daring to challenge what is not lawful.
This government is not legitimate. We are not arguing that it be violently overthrown, or that there be in insurrection. Indeed, such a call to arms is not warranted: These buffoons have violated the law that they can be easily removed from power through the law. Every time they go to work, they have more illegal war crimes to cover-up, hide, and explain away. They cannot get out of this.
Justice Demands Fairness
The draft bill is flawed and a core principle: What is justice. It is troubling to find that this draft specifically states that the Government before the Military Commission may have as its sole objective a death sentence; while this objective is not consistent with the Court Martials system.
This bill specifically contemplates that the government before the Military Commission will seek the death sentence.. The UCMJ is premised on a central question: What is in the interest of justice. Sometimes the JAG and Commander will discuss the punishment; but justice will demand that a lesser conviction be sought.
The imbalance is noteworthy, and raises a question about the underlying motivation of the Military Commission, that is different and distinct from the Court Martial systems. This distinction is not acceptable. Article 3 requires the United States to seek balanced judicial guarantees in the Military Commission as it does in the UCMJ Courts Martial System. The current approach sends a clear signal:
This philosophical difference then surfaces as the lack of interest the United States shows in justice. The procedures are not fair, nor are they consistent with the judicial guarantees afforded to all under the American system of justice. Article 3 compels the United states to ensure that the Military Commission enact procedures and rules of evidence that others might enjoy in the system of American justice:
Hamdan affirmed Article 3 applicability and relevance: The requirements of Article 3 are just that: Requirements. Yet this draft bill builds off the fundamental philosophical flaw, violates Geneva, and then denies the justice system as Geneva otherwise requires:
The bill is flawed on its surface; and also in its design, formulation, and spirit. Hamdan, in theory, should have provided the DoJ Staff with the guidance it needed to ensure the Geneva requirements were fully enacted.
Rather, this DOJ Staff appears to have (once again) gone on its own, ignored the Judge Advocate Generals, and (apparently) hoped to tailor something they do not otherwise understand to a situation that is beyond reasonable application of those templates.
Military law is applicable to military members. Where there are civilian laws and civilian courts, the civilians should be tried before civilian courts. This draft bill confuses the two; but fails to explain why the barriers and privileges afforded to the military under the UCMJ, are not also afforded to civilians in the same system.
Civilians Tried In Civilian Court For Civilian Crimes
It is indeed troubling that in the wake of Sept 2001, did something very strange. The, United States understandably passed (albeit rushed) legislation that specifically criminalized illegal conduct like terrorism and other activities that were thought to have occurred during Sept 2001.
The problem is when those crimes – whether they are or are not supported by evidence is another matter – which have been designated as civilian crimes, triable by a Federal District court, suddenly become a matter for the military to review.
Military personnel are not required to be subjected to the Courts Martial or UCMJ when the problem is not service connected. IN a similar vein, when the misconduct of civilians is not related to the military, the civilians should not be tried before a military commission.
This draft bill would militarize civilian crimes of terrorism, and throw those issues into the military courts. Yet, military members are not similarly required to appear in their own courts for civilian crimes, unrelated to the military.
The Congress has yet to explain this imbalance:
Article 3 states all judicial guarantees will be afforded to all prisoners. But what it the United States guaranteeing civilians:
Civilians could be tried on the basis of an accusation without any real connection to the military. This is not fair, not is it reasonable [Parker 395 US 285 (1969) ]
The problem is that the military jurisdiction over civilians is not linked to combat, conditions unique to the military, nor a credible connection between the civilian and the military. Rather, the military jurisdiction is based on an accusation.
It is not lawful to try military members under the UCMJ when there is no connection between their civilian crimes and the military discipline, or service duty. The terms and criteria are complete [401 US c355 (1971). This bill fails to establish any criteria that would credibly link civilians to the military. This bill fails to outline the terms, criteria, or other standards that would necessarily justify linking a civilian who has committed an already enforceable civilian crime to the military. Where there is no credible connection to the military and the UCMJ, personnel cannot be tried under that system [420 US 738 (1975).
Civilians cannot reasonably be tried by military courts.
This bill fails to establish any reasonable basis to believe that the American civilian population will be treated fairly under this military commission system. The bill fails to credibly demonstrate there is a military interest in the matter. No civilian crime that may or may not be actionable under the UCMJ has any reasonable relationship to any matter of discipline or any issue of any relationship to the military.
The proper way forward is to scrap this bill, and immediately apply the Federal Rules of Procedure to try the prisoners in civilian courts. The draft bill despite Hamdan reminders is a failed attempt to comply with Geneva; rather, it sends a clear signal, the United States legal community, DoJ Staff, and Members of Congress have a hard time comprehending simple issues related to the law.
This bill fails. The appropriate way forward is to use the civilian courts; rely on civilian procedures; and prosecute these crimes as civilian crimes. The alterative is to subject prisoners to procedures that violate Article 3; and thereby sew additional seeds of contempt for the United States. Where one prisoner is unfairly tried; there may be 10 others inspired to take their place. To increase our chances of success prevail and remedy some of our world standing, we would be better off if we simply let the prisoners go without a trial.
Geneva commands that the common justice system and all judicial guarantees be granted to prisoners When American civilians are Justice would demand that there be a resolution or remedy such as throwing evidence out, dismissing the charges, or otherwise sanctioning the government for failing to timely prosecute these case.
Justice demands there be a remedy when there is a wrong. The United States has violated the laws of war by denying prisoners their full Geneva rights. At the heart of this bill is the question over how the prisoners will be treated during trial. The real problem is that there have been so many abuses of their rights, it is likely the prisoners will challenge these procedures.
Unique Objectives of Military Justice
The problem is when military rules of the UCMJ are applied in a boiler-plate approach to legal issues that are not uniquely military. The UCMJ is designed to ensure a justice system that is tailored for the Military to meet uniquely military objectives of moral, discipline, and military readiness.
Civilians do not fit comfortably within these uniquely military objectives of the UCMJ. In turn, by creating the Military Commission on the back of the UCMJ, while expanding the Military Commission to include civilians, the DoJ Staff has made to errors:
Civilians are inappropriately subject to courts tailored for uniquely military purposes. Military courts have jurisdiction on service members on issues related to morale, military principles, and unfitness for duty. The draft bill fails to show how the Military Commission is or is not linked with civilians.
The UCMJ, on its own, does not create a foundation for civilians to be tried before Military Commission. The UCMJ is linked with narrow military issues of [a] morale, [b] military codes of conduct, or [c] questions over the person’s fitness or non fitness for military duty. This Military Commission is unrelated to those narrow questions. This draft bill fails to credibly show how any civilian – wholly outside the narrow issues in the nexus of military issues – can be reasonably connected to the narrow issues of what the Military Commission reviews. Rather, the issues are best left to the civilian courts, where civilians can be tried based on the Federal Rules of Evidence and Procedures.
The crimes these courts propose to adjudicate are not uniquely military. Rather, the US Code already criminalizes the conduct of terrorism. This draft bill ineffectively attempts to create a parallel system of justice which civilians disappear.
Incomplete Process To Challenge Unfair Procedures
The fundamental problem with the draft bill is it is inconsistent with the Geneva Conventions. Article imposes a requirement on the United States to ensure the trial process is consistent with the judicial process. The proposed procedures fail to meet this standard.
Further, Article 1 Section 8 of the US Constitution gives Congress only the power to make laws that are necessary and proper. The procedures in this draft bill are improper.
Article 3 also compels the United States to ensure the system of trying prisons is consistent with other available systems. The concept is one of ensuring that all judicial guarantees afforded under our judicial system are made available to the prisoner. This is not a favor, but a requirement.
The UCMJ is one system based on the notion that the system not only has to be fair, but has the appearance of being flair. The procedures in this draft bill are neither fair, nor do they appear to be fair. Prisoners are not necessarily guaranteed the right to cross examine witnesses; be present for trial; and still denied the right to challenge and see all the evidence against them. Hamdan has already found these violations are not lawful, yet this draft bill fails to respond to the Supreme Court. Rather, the system is unfair, not consistent with the UCMJ, and also inconstant with the Article 3 requirements.
The draft bill outlines a Military Commission System which denies due process and is unconstitutional and void [ 425 US 238]. Those who are denied due process may challenge those illegal and unconstitutional procedures. However, this draft bill fails to outline a roadmap for the prisoner to challenge this process.
The draft bill fails to outline how the prisoner will quickly work with the Court of Military Appeals [CMA] and Court of Military [Review]; or how the process will or will not interface with civilian courts. No where in the bill is there a provision for the prisoner to appeal to the US Supreme Court – a clearly established for those for those under the UCMJ.
Inadequate Nullification Standards
The draft bill fails to outline procedures and remedies of what will be done when there are violations of the law. The draft bill states that the review court may only narrowly review issues of law, but provides no guidance of what is or is not a procedure to conduct this review.
Some might suggest that the precedents will guide the court. Yet, this Administration likes to pretend that the precedents do not apply, or that they are something else.
There is no process for nullification. It is irrelevant that the case law from civilian or courts martial may outline what to do. This draft bill in now way provides the guidance that the Military Commission otherwise needs.
No Provision for Disqualification
This bill fails to discuss disqualifying acts. How does the United States propose to handle violations by the convening authority:
Inadequate Language For Remedies
Put aside the issue that the procedures are not lawful. We turn to the question of what is to be done when the United States does not follow procedures; and how is the prisoner going to timely get a resolution. The United States is required to follow rules of procedure. [309 F 2d 659, 343 F 2d 246] This draft bill fails to credibly demonstrate that there is a quick, timely, and efficient process for the prisoners to quickly challenge violations of the procedures.
There is reasonable basis to be concerned the United States will not follow procedures. Clearly established procedures in the Foreign Intelligence Surveillance Act [FISA] have been ignored. The government offers frivolous reasons for ignoring the law. Congress refuses to take action to sanction these violations. Thus, it is reasonable to conclude that should the courts violate these procedures, Congress and the government will not be there to enforce the law. The system of US governance has broken down.
The draft bill simply cuts and pastes substantial ports of the UCMJ, without incorporating valuable precedents and refinements the courts recognize. This draft bill essentially takes the system of justice otherwise available to military personnel, and turns the clock back to their inception. It is not appropriate to pretend that the draft bill will outline procedures that start from square one. Ideally, the precedents of civilian and military courts – should be injected into the precedents. This draft bill fails to incorporate the court precedents, and build upon the civilian and military precedents which otherwise modernize and clarify the UCMJ.
Dubious Detentions: Likely Challenges To Unlawful Procedures Not Speculative
There are two problems with this bill, one philosophical, the other legal.
This draft bill proposes unlawful procedures. Fundamentally, it is inappropriate for civilians to be subjected to the threat of a military trial. Civil courts have been given the power to try issues of terrorism. The problem with the current prisoners is that the evidence is scant, yet they remain detained.
Some suggest that the prisoners were not in uniform and were not lawful combatants. Putting aside whether that is or is not true; the issue before us: Why have the prisoners who have allegedly engaged in war crimes not been put on trial for those crimes?
It is one thing to say – rightly or wrongly -- that someone is not a lawful combatant or has allegedly engaged in war crimes. The problem is when the United States continues to hold prisoners, but refuses to put them on trial for those alleged crimes. Either they have committed the crimes, or they have not; either there is evidence, or there is not.
It appears that the delay of trial of the alleged war criminals has nothing to do with any plausible argument. Rather, it appears the opposite: That there was no evidence to lawfully convict them for their alleged crimes.
Rather than have a trial, the United States has detained prisoners. If the United States is serious about the rule of law, then it is time to provide the evidence and put them on trial; or it is time to admit that they are not war criminals and there is no basis to detain them.
It has been five years. The value of their intelligence is dubious. People who were not born when they were first detained, have since left pre-school, entered kindergarten and have gotten on with their lives. Millions of volumes have been written on various subjects. Motion pictures, plays, and lengthy dissertations have been written. Is this leadership asking us to credibly believe that they are still getting “valuable” information from those who have long been removed?
We question the basis for their detention; the value of holding them; and the fundamental problem of not putting them on trial for their alleged crimes.
Violations of Sovereignty
This bill subjects any person on earth the arbitrary accusations of the United States. This violates the principle of sovereignty.
It is not lawful for the United States, through an act of Congress, to create international law that subordinates other citizens of other nations. Other nations have not been given the power or the right to waive jurisdiction on these matters. Rather, the US has simply asserted it has the sole power to perform this function.
Inadequate Provisions For Foreign Visitors To Trial
The United States demands access to service members when they are held in foreign courts. Yet, this draft bill denies other nations a balanced access.
The Chief of the United States Diplomatic Mission was, at one time, responsible for visiting United States service members every 30 days to ensure they had adequate food, clothes, legal aid, and medicine. This draft bill fails to ensure the prisoners host nation has similar access, can follow-up, or otherwise do what the US demands of other nations. This imbalance is further evidence the United States is not affording prisoners all the judicial guarantees afforded US Service members in the same or similar situations.
They Represented of foreign countries are not permitted to have access. Rather, the prisoner is only given access to an American citizen-lawyer. The draft bill fails to meet the Article 3 obligations of ensuring foreign-detained prisoners are given access to their government representatives; or personnel from their home country.
Unlawful Inducement to Violate Standards of Conduct
The bill permits the United States to induce prisoners to engage in misconduct. It remains to be seen how prisoners under these rules are treated inconsistency. Article 105 of the UCMJ prohibits prisoners while they are a POW from informing on their peers. [US v. Batchelor; 7 USCMR 354; 22 CMR 1144 (1956)
Executive Order 10631 is the POW code of conduct. This bill fails to recognize or mention a similar code of conduct for POWs under American Control:
DoJ Staff War Crimes Trials Before Military Commissions
This bill fails to put the attention where it is most needed: On the illegal US government actions. If this bill is taken seriously – which it should not – the a balanced set of rules must be imposed on the US.
This bill essentially militarizes the civilian courts. What kind of DoJ Staff attorney misconduct can we also militarize and force before a Military Commission:
The US government action in Iraq is not reasonable. When challenged over whether military orders were or were not legal, the US government must prove beyond a reasonable doubt that the orders were legal. It is not the job of anyone to prove that the orders were or were not illegal.