Dogonne it Dave!

Spot thought he just about had this military commissions stuff about wrapped up, but Dave Thul posts an interesting question:

I wonder if there is so much confusion on this matter because of the huge majority of Americans who have never served in the military. First, Taliban troops would in theory be covered under the Geneva Convention, because they were by and large uniformed troops serving in an organized militia. You have to cut them a lot of slack on the uniform issue, but the intent to act like an army is what is important. Terrorists, on the other hand, are not mentioned in [Common] Article 3 of the Geneva Convention[s].

Yes, Dave, there is some confusion about that. But no only by the unwashed masses of unmilitary citizens, but by the military and the administration, too. Here's the opening graf of the opinion in Hamdan v. Rumsfeld:

Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the Taliban (which then governed Afghanistan), Hamdan was captured by militia forces [i.e., the Northern Alliance] and turned over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later, the President deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy "to commit … offenses triable by military commission." App. to Pet. for Cert. 65a.

As far as Spot can tell, there was no allegation that Hamdan was not just a Taliban fighter at the time he was found eligible for trial by a military commission. He was not an Afghan, but there were a lot of Arab militia types in Afghanistan since the days of the invasion of the Soviet Union. The US gave these fighters a lot of support, too. The charges ultimately brought against Hamdan were for "conspiracy to commit terrorism," a charge that the majority in Hamden expressed doubt about the existence of in international law.

Here's what the original military commissions envisioned by the administration would have included: the unrestricted use of hearsay evidence, and evidence obtained by coercion, no requirement of sworn testimony, the inability of the defendant to hear evidence used against him if it was classified, and most amazingly, no right to even be present at the trial. There is a reason why you don't hear about convictions in absentia in the United States; they would violate the right of a defendant to be confronted by the evidence against him.

There is a lot tut tutting by some people, including Dave, who think this about giving terrorists jury trials and granting other rights "never contemplated by our Founding Fathers." Rubbish. Hamdan conceded that a regularly convened court martial would have jurisdiction to try him.

Hamdan's complaint was that the kangaroo court tribunals set up by the administration were created neither by the Constitution or a statute. (Maybe John Yoo just made 'em up!) And he was right. The military commissions met neither the requirements of the Uniform Code of Military Justice nor, the Court found, Common Article 3.

The government tried hard to distinguish between "legal combatants" and "illegal combatants," and the Military Commissions Act strives to maintain a distinction between them. If you are a legal combatant under the MCA, you get an honest-to-goodness court martial. If you are an illegal combatant, you get something less.

This is what Dave is harping about.

But it is not clear to Spot that the Supreme Court drew a distinction. Spot says that the Supreme Court said that Common Article 3 sets a floor below which a member country to the Conventions cannot go, for any trial, of anybody, on charges of war crimes, anyway. Spot thinks you get Article 3 treatment just, well, because you're a human being. Spot knows that disappoints some people.

The MCA may also fail judicial scrutiny under Common Article 3, too. There was discussion of that fact in the Senate, as Spot recalls.

Tags: Hamdan v. Rumsfeld, military commissions