Congress: Lawfare Vs. Warfare

There’s as much division in Congress today over Iraq and what kind of, if any, war the U.S. is in as there was in the early ‘70’s over Vietnam. What’s different is the extent to which the divisions now exhibit themselves cloaked in legal process arguments.

The causes are several: New types of enemies, clearly not part of a anything close to a conventional national military; The increased sway of lawyers throughout our society and their priorities for process over defense; and, The decline in military veterans among our senators and congressmen, at the lowest point since during World War II, having less sensitivity to internal military concerns.

In an earlier column I described the intrusion of an inadequately trained Judge Advocate General corps into rules-of-engagement issues.

The arguments over how to deal with enemy detainees is the most prominent example. Some argue for complete access to U.S. courts and procedures, though detainees are not U.S. residents and the nature of battlefield or intelligence information and capture cannot by nature approximate domestic police arrest nor can battlefield or intelligence evidence be as certain or open as in domestic cases.

The Bush administration sought to treat such detainees as outside ordinary U.S. judicial procedures, through military commissions. A majority of the Supreme Court in 2006, in Hamdan v. Rumsfeld, found these procedures inadequate, primarily for not being specifically enough authorized by Congress, which has that authority.

Some in Congress argued for full access by “alien unlawful enemy combatants” to U.S. civilians’ courts and rights, or via the U.S. military’s Uniform Code of Military Justice (UCMJ). The considerations of the nature and locale of the detainees, and of the evidence and procedures that are appropriate to fairness and national security, led to the Military Commissions Act of 2006. Many procedures are based upon UCMJ. Of note is that the process includes appeal at end of process to the U.S. District Court in D.C. and from there to the Supreme Court. It does not include habeas corpus challenges by detainees to the U.S.’ right to detain or try them.

In the Senate, the vote was 65-34, all but one opposed being Democrats. In the House, the vote was 250-170, all but seven opposed being Democrats.

With the increase in number of Democrats in the current Congress, and their control, like bills have been introduced by Democrats in House and Senate to amend the Military Commissions Act. (HR 1415 and S576; details here) Most notably, the bill would allow habeas corpus challenges by detainees to their detention or trial, and “provide for expedited judicial review of civil actions that challenges any provision of the Military Commissions Act of 2006.” It would, also, “include as War Crime offenses the denial of trial rights.”

In effect, the operations of the military commissions would become utterly bogged down in a multitude of legal challenges.

These amendments reflect both a prioritization of inapplicable legal process over either traditional or common-sense laws of warfare and, as dangerously, an abuse of legal process to serve their priority of politically battling against prosecution of the war in Iraq and the broader battle against enemy jihadists.

The relatively low number of veterans in Congress during World War II did not undermine unity in conduct of that war. Today,

Partisanship might explain more about lawmakers' positions than military backgrounds. William Bianco, professor of political science at Indiana University, said his study on voting patterns showed that, "in the main, veterans look like nonveterans in Congress, on any dimension we can measure."

However,

"My concern is in the nuance military issues -- veterans' benefits, military construction costs, the backlog in rebuilding [damaged] equipment -- issues that aren't sexy," said McCausland, director of national security affairs at Buchanan Ingersoll and Rooney, a Washington law firm.

That division is being seen in a bill introduced by San Diego Democrat Congresswoman Susan Davis, now chair of the House Armed Services Subcommittee on Military Personnel, to amend the UCMJ.

The UCMJ was signed into law in 1950, to bring all the services under the same rules. There were years of studies and hearings, with inputs from all sources. The Harvard law professor who chaired the drafting committee, explained that the uniform rules “would provide full protection of the rights of persons subject to the Code without undue interference with appropriate military discipline and the exercise of appropriate military functions.”

Since, changes in the military’s judicial system have been comparatively few, reflecting the respect it has engendered and the care of legislators to interfere with the self-management needs of the armed services. Changes have been deeply studied and widely supported across the aisles in Congress.

The 1983 Military Justice Act expanded the rights of appeal. It was unanimously approved in the Senate and House Armed Service Committees. The highest UCMJ appeals court, the Court of Appeals for the Armed Forces (CAAF), is actually comprised of civilian judges appointed by the President and approved by the Senate. It was deemed appropriate to allow appeals to the Supreme Court of decisions by CAAF, but appeals by defendants whose appeal for consideration by CAAF are denied cannot proceed to the Supreme Court for an override. The Justice Department said,

To limit direct appealability in such a way would permit the Supreme Court to consider issues of public importance but would preserve the role of the Court of Military Appeals [CAAF’s previous name, before 1994] as the primary civilian interpreter of the Uniform Code of Military Justice.

Congresswoman Davis’ bill (HR3174) would allow defendants to appeal to the Supreme Court even if their appeal to CAAF was declined. She had introduced it in 2005 (HR1364), with five Democrat co-sponsors, and it failed to garner wider Congressional support. She has reintroduced it, now with seven Democrat co-sponsors (notably including the addition of current House Armed Services Committee chair Ike Skelton, for added wind in its sails).

In 1983, the Senate Armed Services Committee report (linked above) said it

“…believes that the question of what cases are heard by the Court of Military Appeals is a matter of internal management…However, the Committee would hope that the Court of Military Appeals would examine its current rules and procedures…in light of the “key” to access to the Supreme Court that it would hold if this bill were enacted.

All the military law experts that I consulted specifically to the point agreed that CAAF has been quite broad in the appeals it has allowed.

Scott Silliman is professor of Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke University’s School of Law. He wrote to me:

I'm not sure the change is necessary. The USCAAF has historically "tilted" on the side of taking a case, rather than denying a petition; and the Court has sometimes even found an issue on which to grant, even though it was not raised in the petition. Thus, although some might deem this "necessary", I don't; but I also don't take a strong position against it.

In a call to the office of preceeding House Armed Services Committee chair, combat veteran Duncan Hunter, the successful and fair operations of CAAF were reviewed, and I was informed:

I feel that the current appellate system that exists within the armed services is sufficient to ensure that service member’s rights are protected. Consequently, I do not feel that any changes to the appeals process are warranted at this time.

Eugene Fidell, president of the National Institute of Military Justice, who has supported habeas corpus for detainees, disagrees, feeling, “It’s a matter of simple fairness.” In an email to me, Fidell says:

General and special courts-martials ought to be subject to at least the possibility of Supreme Court review regardless of the issue(s) the accused seeks to raise, just like convictions in the civilian federal district courts. If the issue is frivolous or clearly without merit, the Court will deny certiorari [petition for review] (as it has done in the vast majority of military certiorari petitions in the last 20+ years).

It well may be a matter of simple fairness, as Fidell says, and the Military Officers Association of America agrees in an email to me: “MOAA believes, as a matter of legal principle, that both the government and a military defendant should have equal appeal rights under the law.”

But, the matter is not quite that “simple.”

The operation of our military is not just a “matter of legal principle,” but primarily a matter of effectiveness. The UCMJ is not deemed ineffective, or even unfair in actual operation. The minor Congressional support for Congresswoman Davis’ bill runs contrary to the care that Congress has previously taken to deeply study and widely support any changes in UCMJ.

Eugene Fidell wrote me that, “I would hope the corrective legislation did not get tangled up in – or held hostage for – the issues relating to detainees, military commissions, and habeas ‘stripping.’ “

A worthy wish. However, for the lack of adequate practical cause, study and support, and the extent of partisanship that has infected the overall issues of military missions and operations, furthering that divide by hasty or only legalistic treatment of Congresswoman Davis’ bill is not in the best interests of Congress, our military, or us as citizens dependent upon their sober judgment.