Thursday, September 01, 2005

David Glazier on Military Commissions

David Glazier at Intel Dump has provided this analysis of the new military commission rules here. Most of his criticisms seem fairly plausible, although I wonder about one particular claim he makes:

There is an extensive body of WWII era precedent that establishes that the failure to provide a trial measuring up to customary international due process standards is in itself a war crime, even where the accused are acknowledged to have been illegal combatants not qualifying for protection under any international treaty.

Here, David is arguing that military commission trials that do not meet customary international law standards are themselves war crimes. He further argues that these customary standards essentially require the same procedural fairness as court-martials for members of the U.S. military.

I admit that I am unaware of this body of precedent, and even if it existed, I doubt it could be enforced in any civilian court proceeding. While measuring military commission trials by U.S. treaty obligations seems reasonable, I am leery of relying too heavily on customary international law, which is notoriously fuzzy, and upon which none of the civilian courts analyzing the military commission trials have relied.


Anonymous Charles Gittings said...

These changes are just cosmetic: the commissions are illegal. I've just finished a commentary on the Hamdan opinion which I believe shows just how illegal they really are, and just how unfit John Roberts is to serve on the Supreme Court bench. See:

As for the precedents, he's refereing to Uchiyama, the Doolitle Raiders case, Alstoetter etc.


9/01/2005 5:45 PM  
Anonymous Charles Gittings said...

Here's a related item that should be getting more attention: the transcript of a hearing on Aug 25 before Judge Robertson in the case Qassim v. Bush. The detainees in this case are Uighurs from NW China. They can't be returned, to China, and the administration has failed to find a country that would take them for two years apprently. The Pentagon has declared them "NLEC" meaning no longer enemy combatants. In fact it appears they never were enemy combatants to begin with — they just got nabbed for the bounty. Now they are being held indefinitely and are STILL being treated like prisoners strictly because the administration thinks that is the most convenient solution. No Constitution, no law, just pointless bureaucratic malice. But don't take my word for it, read it for yourself:

Aug 25 Hearing

Aug 1 Hearing

Note: shortly before they were declared NLEC in late 2003, Bush said about the Gitmo detainees "The only thing I'm sure of is these are all bad people."

9/02/2005 1:19 AM  
Blogger Julian Ku said...

I guess I'm not as confident as Charles in the illegality of the commissions and I'm afraid his commentary doesn't persuade me substantially. The Hamdan opinion seems quite persuasive to me on a couple of levels:

It is certainly plausible to me that Congress's authorization to use military force included the authorization to conduct military commission trials.

As far as I know, the Geneva Conventions have never been enforced in federal court to provide an individual right. Moreover, many, many treaties (maybe even the majority of treaties) have been held unenforceable in federal courts. You may deplore this fact, but it is a well-accepted rule among courts.

I am unaware of what statutory provision actually proscribes military commissions or sets procedures for such commission trials. The statutes Charles mentions don't do so explicitly, although I guess he is arguing that they can be fairly read that way. It would be nice to see the statutory language he relies on.

9/02/2005 10:37 AM  
Anonymous Charles Gittings said...

Hi Julian,

Ya, well what can I say? I'm willing to discuss and/or debate it if you are. I'd welcome the opportunity even. I can give you as much reading material as you want, including the leading apologists.

Working TOA

Paust's two Michigan papers and Wallach's Uchiyama paper are a good place to start. Tons of other stuff here:


Including briefs and such in the folders. But let me just start with what you say here...

JK: "It is certainly plausible to me that Congress's authorization to use military force included the authorization to conduct military commission trials."

Well yes and no.

"Concerning this section of the opinion it needs only be said that there is no question it would be possible for the President to properly constitute a military commission or tribunal under the UCMJ, but he has not done so here: the commissions in question violate Geneva, Hague,and 18 USC § 2441 because they are ad hoc and improperly constituted." Me, Commentary at 19.

He could have defined the procedures at will on 9/10/2001, but once he jumped on the golden opportunity to declare war on something, everything froze for the duration. Which is no problem at all, since both the art. III criminal system and the really superb military system are both a lot more capable of providing due process to criminal defendants than the kangaroo courts at gitmo ever will be.

But that brings us to problem number two: even if this was 9/10/2001 or he hadn't declared war on something, the procedures have to meet basic standards, and these commissions not only don't meet the standards (CA3 is the minimum), their entire reason for being is to evade them.

Now it is possible to "denounce" Geneva. That requires one year advance notice to the Swiss govt, whereupon it goes into effect at the conclusion of hostilities, incl the repatriation of all prisoners.

Beyond that is PA2 art. 75 and customary law, IMT, etc. But that's semi-academic here.

Then there's problem number three: Congress has no power to authorize war crimes in gen'l; violations of Geneva during a war (non-derogable as above); or federal felonies (18 USC 2441).

That's also problem number four: Congress authorized no such thing, they authorized all "necessary and appropriate force" and these commissions are neither, and b) no sort of "use of force" at all (The French legal maxim "the law is force" notwithstanding.)

Would you suppose that the AUMF authorizes the President to define procedures whereby he could order the rape of two year olds?

Surely not, but WHY not?

And that is a very serious and highly relevant question, so please don't dismiss it out of hand.

"As far as I know, the Geneva Conventions have never been enforced in federal court to provide an individual right."

So what? That's a fallacy of accident; the law applies to facts, not fantasies:

a) Yamashita (Eisentrager) said the conventions were inapplicable to acts prior to capture, not that they were unenforcible in a court of law.

b) Geneva 1949 was ratified in 1955.

c) Up until now, the US has mostly obeyed Geneva and this is the first US administration that modeled their legal policies on Nazi Germany and the Mafia.

d) A judicial opinion based on prejudice and fallacy is breach of judicial conduct, noy a precedent worthy of respect. The Supremacy clause is not ambiguous, and neither is Foster v. Nielson, Paquette Habana, the Head Money Cases, etc.

e) There is a first time for everything, including the enforcement of every criminal statute ever been enacted.
Which is precisely why it is so important to make sure that Mr. Bush and Mr. Cheney are tried and covicted for their crimes, even if it takes 30+ years to do it.

And the same goes for every lawyer and judge who aids or abets them: I mean to see every last one of them disbarred for life and serving time in prison.

f) The "principle" that DOJ and the Hamdan panel rely on is no rule, it's a fraudulent tautology: a rule states a principle by which facts may be distinguished, not something that's true by definition in all cases. If a judge delivers an opinion saying 1 + 1 = 3, the only legal signifcance it has is that the judge is a crook.

My question is: why would a lawyer reach any other conclusion?



9/03/2005 12:25 AM  
Anonymous Anonymous said...

I just cannot help shaking my head...I walked out of the Pentagon on 911...some people still do not get the fact that terrorists want to murder Americans in very large numbers. The thought of a nuclear 911 is more terrifying to me than a less-than-cosmic level of justice in the United States or in the world. In sum, I fear Al Qaeda more than I fear DOD and DOJ.

9/05/2005 2:45 PM  
Anonymous Anonymous said...

Hi Anonymous,

I assume you must be referring to me here, but you know what?

You could not possibly be more mistaken: I not only "get it," I got it back in 1987, when I realized that something like 9/11 (and worse) was virtually inevitable -- and the reason that I have fought so hard on the detainee issues is that I also understand that the policies of the Bush administration have accomplished nothing except to increase the risk of such an attack by several orders of magnitude -- and climbing. If the US government were to continue to act as the Bush administration has indefinitely, the risk will become a certain.

Now quit shaking your head and THINK:

1) The most likely strategic aim of the 9/11 attack was to provoke exactly the reaction that it got from the Bush administration.

2) As it stands, the terrorists are not only winning the war, it's not even a contest at this point.


I know you are probably shaking your head again, but I've been reading this thing like an open book for four years now and I have yet to be wrong about anything big yet. Let me try an analogy:

A Mosquito attacks an elephant.

The proper response is to swat the mosquito with your tail and go back to munching trees.

We're all riding an elephant chraging straight over a cliff in a panic.

And the mosquitos are laughing with glee.


Anonymous said...

"I just cannot help shaking my head...I walked out of the Pentagon on 911...some people still do not get the fact that terrorists want to murder Americans in very large numbers. The thought of a nuclear 911 is more terrifying to me than a less-than-cosmic level of justice in the United States or in the world. In sum, I fear Al Qaeda more than I fear DOD and DOJ."

9/05/2005 6:36 PM  
Anonymous Dave Glazier said...

Julian is right to have a healthy skepticism about the applicability of customary international law in U.S. courts, but the common law of war is one area courts have regularly applied these norms. And since the very justification for the military commission's employment is rooted in the customary norms, it is only logical that it be judged by those standards. I've posted a more detailed response for those interested at

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