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July 11, 2006

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ASH

I believe the best option for Congress is to let the detainee trials proceed in the courts-martial. This is because, the Court, understanding the Congress may attempt to legislate around its ruling, has laid traps that will force Congress to seriously consider leaving detainees in the hands of the courts-martial. For instance, why did the Hamdan Court go through its Geneva Convention “regularly constituted” analysis in Part VI (D) after it had already found the commission’s rules to be illegal under Article 36 of the UCMJ? And why would Justice Kennedy sign on to Part VI (D) (i-iii), when he refused to sign on to Part V of the opinion (the conspiracy question) because he relied on “other deficiencies noted by the Court?” Finally, why would the Hamdan Court go through the pains of declaring that footnote 14 in Eisentrager “does not control this case?” Is it because the Court understands that it is easier for Congress to change the uniformity principle of the UCMJ’s Article 36 than it is for Congress to change Article 21’s demand that the military commissions comply with the law of war?

Congress can change Article 21’s requirement that the President comply with the law of war, but in doing so, it would amend a requirement that has been in effect for 90 years to a time before Article 21’s predecessor, Article 15, took effect. And that’s something Congress probably won’t do, because, as noted in footnote 22 of the opinion, “when the Articles of War were codified and re-enacted as the UCMJ in 1950, Congress determined to retain Article 15 because it has been ‘construed by the Supreme Court (Ex Parte Quirin, 317 U.S. 1 (1942)).’” Finally, the Court’s analysis of Eisentrager’s footnote 14, and its citation to the Brief of Louis Henkin in footnote 58, should warn Congress that the Geneva Convention may be judicially enforceable without the help of Article 21.

So, the only other option for Congress is for it to change the “law of war.” As the Supreme Court noted, the applicable law of war is Common Article 3, and its requirement that there be a “regularly constituted court.” The majority (and Justice Kennedy separately) state regularly military courts “are courts-martial established by congressional statutes.” So, that would mean a repudiation of Common Article 3. That, according to Professor Vasquez, could have serious implications for the United States internationally, and the Senate may not be keen on such a tactic. In addition, I read Justice Stevens’s footnote 66 (not joined by Justice Kennedy) to be a warning of what Americans could face if they violate the law of war by conducting the military commissions that fail “to afford captives fair trials before imposition and executions of sentence.” So, were Congress to repudiate Common Article 3, and institute commissions that substantially deviate from courts-martial, could Americans face international tribunals on charges of war crimes?

I think the purpose of even penning Part VI(D), despite overtures by Justices Stevens, Breyer, and Kennedy for the President to consult with Congress, is to let Congress know that the “consultations” should lead to one conclusion, as Neal advocates, to have the detainee trials proceed under a courts-martial framework.

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