In Law and the Long War, Ben described a cyclical process in which civil liberties and human rights NGOs would criticize the Bush administration’s detention standards and policies on GTMO, the Bush administration (under pressure from various fronts) would reform detention policy to move toward the NGO position, and then NGO demands would ratchet up their demands. “[I]n a kind of mission creep,” Ben said, “the human rights groups refused to take ‘yes’ for an answer.” Ben added: “Between 2002 and 2007, the baseline of legitimacy for detentions has shifted for the human rights groups from rigorous compliance with the Geneva Conventions to criminal charges and extensive judicial involvement.” Since 2007, we have achieved extensive judicial involvement, as courts have extended full habeas corpus review to GTMO. Any remaining demand for criminal charges (i.e. for elimination of military detention) flies in the face of the judgment of two administrations, large bipartisan majorities in Congress, the lower federal courts, and the American people.
I was reminded of Ben’s analysis when Kate Martin sent in her post that linked to an extraordinary document from 2002 that listed the objections to military commissions by major NGOs, including Alliance for Justice, ACLU, CCR, Human Rights Watch, and the Lawyers Committee for Human Rights (now Human Rights First). These and other NGOs listed nine “major deficiencies” in commissions 2002, all of which have been entirely or significantly addressed. After reading the 2002 objections, consider:
- Unlawful Scope and Jurisdiction. There is now jurisdiction by statute. The scope of jurisdiction over persons is much tighter. And while contestation remains over the question whether a few crimes (most notably, material support and conspiracy) are offenses recognized by the laws of war, that question is subject to review and resolution by Article III courts, including the Supreme Court.
- Lack of Independence and Impartiality. All of these concerns have been addressed, and military commissions enjoy essentially the same protections against command influence as courts martial.
- No Judicial Review. Full review is now available in United States Court of Military Commission Review, then the D.C. Circuit, and finally the Supreme Court. (Here is military law expert Gene Fidell complaining that this is too much appellate process.)
- Secret Evidence: Major reforms have taken place here as well. Commissions now use virtually the same rules for dealing with classified information – a version of the Classified Information Procedures Act – as is available in civilian court.
- Denial of Effective Assistance of Counsel: There has been change in this context as well, under both the MCA of 2006 and the MCA of 2009. There are continuing disputes about legal mail, but that issue is before the military commission judge and is ultimately subject to Article III review. Nobody who has read Lawfare’s coverage of military commission proceedings can doubt that detainees are receiving first-rate counsel from well-staffed defense teams.
- Indefinite Detention: Military detention at GTMO is now expressly authorized by Congress, has been approved by federal courts in the D.C. Circuit, and is subject to Supreme Court review.
- Death Penalty: The NGOs appear to oppose the death penalty in all contexts, but in any event military commissions, in Rule 1004, now use Rule for Court-Martial 1004, which was upheld (on other grounds) as lawful by the Supreme Court in Loving.
- Lack of congressional authorization: Congress has since 2002 twice authorized military commissions – in the MCA of 2006, the MCA of 2009. And it reaffirmed its approval of military commissions (and its preference for commissions over civilian trials) in the NDAA of 2012.
In short, the federal government has gone a long way toward meeting the NGO’s 2002 demands. This extraordinary progress, combined with the much better public transparency of commission operations in the last year, is what lies behind my judgment that “commissions emerging as an effective and legitimate tool of terrorist incapacitation.” The NGOs and the many other forces (inside and outside the government) that got us to this place deserve credit, and thanks. There are still many open legal issues, of course, but they are all addressable by Article III courts.
I have not canvassed all of the current positions (circa 2012) of the 2002 NGO signatories on military commissions, and thus I do not know whether there has been mission creep in this area. I suspect there has been. That is, I suspect that the 2002 signatories are not pleased with reformed military commissions and have new demands beyond the 2002 baseline. (I am happy to be corrected on this, and I will post counterexamples.) Human Rights First, for example, notes some improvements since 2002 but maintains that military commissions after the MCA of 2009 “still fail to provide many of the fundamental elements of a fair trial found in federal civilian courts and a court martial system.” This position is effectively one that objects to military commissions in any guise.
The NGO mission creep on GTMO and possibly on military commissions makes me wonder if there are other examples of such mission creep over the last decade. Please send in any examples – the more concrete instances of moving goal posts, the better – to email@example.com. I will publish especially good examples. The point here is not to play gotcha, but rather to document how far we have come, and to put the current resting place of counterterrorism policies in better perspective.