Memo Reviewing the Restoring the Constitution Act of 2007 by the Harvard Law School National Security Research Group

This Memorandum will present the findings of the Harvard Law School National Security Research Group’s review of the Restoring the Constitution Act of 2007, a bill that was introduced by Senator Dodd on February 13, 2007. The Memorandum is intended to facilitate intelligent discussion of the Bill and of the Military Commissions Act of 2006. To that end, the National Security Research Group, a non-partisan student organization, surveyed each section of the Bill and recorded the important features in this report. The first section of this Memorandum is organized topically and summarizes the main provisions of the Bill. The second section is organized according to the order of the Bill’s provisions and discusses each section of the Bill in detail. The Memorandum does not express any opinion with respect to the wisdom of the changes proposed in the Bill.

In Brief

The main provisions of the Bill are as follows:

Unlawful Enemy Combatant Status

• Definition of “Unlawful Enemy Combatants” Narrowed

The Bill would narrow the definition of unlawful enemy combatant to include only individuals who are not lawful combatants and who “directly participate[] in hostilities in a zone of active combat against the United States” or were connected to the September 11 attacks. (Sec. 2)

CSRT Determinations not Dispositive for Military Commissions

• The Bill would eliminate the MCA provision that makes determinations of unlawful enemy combatant status by Combatant Status Review Tribunals dispositive for the purpose of determining whether a military commission has jurisdiction over an individual. (Sec. 4)

Geneva Conventions

• Courts Have Power to Strike Down Portions of MCA MCA if Inconsistent with GC

• The Bill would allow courts to determine whether any of the provisions of law setting up military commissions are in conflict with the Geneva Conventions, and would require courts to strike down inconsistent provisions. (Sec. 3)

Eliminating Prohibition on the Invocation of GC as a Source of Rights

• The Bill would repeal the portion of the MCA that prohibits individuals from invoking the Geneva Conventions as a source of rights in a habeas action or any other civil action involving the United States or any agent of the United States as a party. (Sec. 12)

Adding “Denial of Trial Rights,” CID Treatment, and other CA3 Violations to Statutory List of War Crimes

• The Bill would add Denial of Trial Rights; Cruel, Inhuman and Degrading Treatment; and Certain Other Violations of Common Article 3 as war crimes punishable under the War Crimes Act. (Sec. 13)

Curtailing President’s Power to Interpret GC; Use of Foreign and Int’l Law

• The Bill would curtail the President’s power to unilaterally interpret the Geneva Conventions. This Bill would also repeal the MCA prohibition on the use of foreign and international legal sources by courts when interpreting the enumerated war crimes. (Sec. 13)

Habeas Corpus

• Restoring Habeas Jurisdiction
• The Bill would undo the MCA’s modification of the habeas statute, which stripped the federal courts of jurisdiction to consider applications for a writ of habeas corpus filed by enemy combatants. (Sec.14)

Military Commission Procedures

• Prohibiting Introduction of Any Statements Obtained Through Coercion
• Section 6 would prohibit military commissions from admitting into evidence any statement obtained through coercion. (Sec. 6)
• Removing Burden of Proof Regarding Hearsay Evidence from Defendant
• The Bill would relieve the party opposing the introduction of hearsay evidence at a military commission trial of the burden of demonstrating that the evidence is unreliable. (Sec. 7)
• Trial Counsel Must Reveal Sources and Methods to Defense Counsel
• The Bill would permit the judge presiding over a military commission trial to require the prosecuting counsel to disclose to the defense counsel the origins of certain out of court statements. (Sec. 9)
• If No Adequate Substitutes for Classified Exculpatory Evidence, Case Dismissible
• The Bill would the judge presiding over a military commission trial to dismiss charges where classified exculpatory evidence cannot be shown to the defense counsel and there is no adequate substitute. (Sec. 9)
• Reducing Secretary of Defense’s Discretion to Prescribe Procedures
• The Bill would curtail the discretion of the Secretary of Defense to prescribe military commission procedures that depart from typical court-martial procedures by reframing such departures as “exceptions” and limiting the circumstances in which they are justified. (Sec. 7)

Appeals and Review

• Expedited Judicial Review of Challenges to MCA
• The Bill would provide for expedited judicial review of actions challenging the legality or constitutionality of any provision of the Military Commissions Act. Such actions would be filed in the District Court for the District of DC, and review would be as of right by the Supreme Court. (Sec. 15)
• Eliminating Court of Military Commission Review; Appeals go to CAAF
• The Bill would eliminate the Court of Military Commission Review, which was created by the MCA, and vest principal appellate jurisdiction over military commission judgments in the Court of Appeals for the Armed Forces. Review of final judgments would continue to be routed through the DC Circuit to the Supreme Court. (Sec. 10)
• Eliminating Restrictions on Scope of Appellate Review
• The Bill would eliminate restrictions on the permissible scope of appellate review of decisions by military commissions and Combatant Status Review Tribunals. (Sec. 11)

In Detail

What follows is a more detailed description of each provision of the Bill and, where appropriate, a brief analysis of the changes the Bill would effect.

Section 1: SHORT TITLE

Section 1 would entitle the Act the “Restoring the Constitution Act of 2007.”

Section 2: DEFINITION OF UNLAWFUL ENEMY COMBATANT

Section 2 would substantially redefine the term “unlawful enemy combatant,” though it would not change the definition of lawful enemy combatant. The new definition would be far narrower than the current definition. There are five significant differences between the current MCA definition and the definition proposed by this Bill.

First, it would no longer be sufficient for a person who is not a lawful combatant to have “engaged in hostilities” against the United States. Under this Bill, a person must have “directly participate[d] in hostilities in an active zone of combat.” Second, material support of hostilities would no longer be sufficient to confer unlawful combatant status. Third, individuals who engage in hostilities against United States allies (“co-belligerents”) would no longer be considered unlawful enemy combatants. Fourth, determinations of unlawful combatant status by a Combatant Status Review Tribunal would no longer be dispositive for the purposes of establishing jurisdiction for a military commission. Finally, the Bill would add a provision extending unlawful enemy combatant status to individuals with a nexus to the September 11th attacks. The wording in this September 11 nexus portion of the Bill mirrors the language in the 2001 Authorization for the Use of Military Force, but adds the additional requirement that the person in question intentionally aided the September 11 attacks or intentionally harbored such a person.

Overall, the current MCA definition is significantly broader than the proposed one. The MCA definition necessarily includes individuals with a nexus to September 11, so the proposed changes would narrow the definition without adding anything substantial.

Section 3: CONSTRUCTION WITH GENEVA CONVENTIONS

Section 3, in conjunction with Section 12, would allow courts to inquire into the validity of military commissions under the Geneva Conventions. Whereas current law prohibits unlawful enemy combatants from invoking any rights under the Geneva Conventions, this provision would permit a defendant to challenge the legality of the military commissions. To the extent a reviewing court determines that a provision relating to military commissions is found to be inconsistent with the Geneva Conventions, the Bill would require that the offending provision be struck down.

Section 4: DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY COMBATANT STATUS REVIEW TRIBUNAL NOT DISPOSITIVE FOR PURPOSES OF JURISDICTION OF MILITARY COMMISSIONS

Section 4 would eliminate the provision in the MCA that makes determinations of unlawful enemy combatant status by Combatant Status Review Tribunals (“CSRTs”) dispositive for the purpose of determining the jurisdiction of a military commission. That is to say, the Bill would permit defendants to challenge the jurisdiction of a military commission to hear their case on the grounds that they do not fall within the new definition of unlawful enemy combatant in Section 2, and would require the military commission to consider the claim notwithstanding any previous determination by a CSRT to the contrary. It is not clear whether a prior determination by a CSRT could be used as persuasive authority.

Section 5: TRIAL COUNSEL AND DEFENSE COUNSEL

Section 5 would modify the requirements for prosecuting and defense attorneys in military commission trials. The section would change the current provision permitting the prosecuting attorney (“trial counsel”) to be either military or civilian to require that the prosecuting attorney be military. It would also change the provision requiring all defense counsel to be military to allow defense counsel other than the chief defense counsel to be either military or civilian.

Section 6: EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF STATEMENTS OBTAINED BY COERCION

Section 6 would prohibit military commissions from admitting into evidence all statements obtained through coercion (“except against a person accused of coercion as evidence that the statement was made”). Under the MCA, such statements can be admitted into evidence if the judge determines that they are reliable; that they have probative value; that the interests of justice would best be served by their admission; and, for statements obtained after the enactment of the Detainee Treatment Act, that the interrogation methods used to obtain the statements did not amount to cruel, inhuman, or degrading treatment.

Section 7: MODIFICATION OF AUTHORITIES ON RULES FOR MILITARY COMMISSIONS

Section 7 would change the provisions governing the promulgation of procedures and rules for military commissions, and would change the content of some of the legally prescribed rules. Section 7(a) would curtail the discretion of the Secretary of Defense to prescribe procedures that depart from typical court-martial procedures. Under the MCA, the military commission procedures must only conform to court-martial procedures “so far as the Secretary considers practicable or consistent with military or intelligence activities.” This section would require that any such departures be authorized by law—either under the MCA or the UCMJ.

Importantly, however, the second paragraph of the section would temper this prohibition by permitting the Secretary to “make such exceptions” from the typical procedures of courts-martial “as may be required by the unique circumstances of the conduct of military or intelligence operations during hostilities.” Departures from typical court-martial procedures would thus primarily be framed as “exceptions,” rather than as features of the procedures themselves. The standard for such departures would also be made more stringent by adding the requirement that the circumstances justifying them must arise from the conduct of certain operations during hostilities.

Section 7(b) would permit military commissions to exclude from trial evidence seized within the United States on the basis that the seizure was not carried out pursuant to a search warrant or other authorization.

Finally, section 7(c) would shift the burden of demonstrating that hearsay evidence is unreliable away from the party opposing the admission of the evidence (typically the defendant). Under the Bill, if counsel moves to exclude the evidence, the responsibility for determining the reliability of the evidence would shift to the judge. The moving party would no longer forced to “demonstrate[]” that the evidence is unreliable or lacking in probative value.

Section 8: SELF-REPRESENTATION OF ACCUSED BEFORE MILITARY COMMISSIONS

Section 8 would permit defendants to represent themselves before military commissions. Defendants currently must be represented before military commissions by approved defense counsel. The modification would address the concerns of defendants who are not comfortable being represented by American defense counsel subject to the restrictions in the MCA. Note that under this provision, a defendant who chooses to represent himself would still be guaranteed access to counsel—either JAG or civilian—to help with the preparation of his defense.

Section 9: ENHANCEMENT OF AUTHORITIES ON DISCOVERY OF WITNESSES AND OTHER EVIDENCE

Section 9 would permit the judge presiding over a military commission trial to require the prosecuting counsel to disclose to the defense counsel the origins of certain out of court statements where the judge determines on his own review that the origins might affect the probative value of such evidence.

This section would also modify the MCA provision that requires the prosecuting counsel to disclose to the defense counsel the existence of any exculpatory evidence, but permits the prosecuting counsel to provide an “adequate substitute” where such exculpatory evidence is classified. The new revised section would permit the judge to dismiss all or part of the charges where he determines that the substitute is inadequate to protect the defendant’s right to a fair trial.

Section 10: REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES RATHER THAN COURT OF MILITARY COMMISSION REVIEW

Section 10 would route the initial set of appeals of military commission decisions through the Court of Appeals for the Armed Forces, which currently exercises appellate jurisdiction over persons subject to the Uniform Code of Military Justice, rather than the Court of Military Commission Review, which was created by the MCA specifically to hear appeals from judgments of military commissions. The section would also clarify that appeals of military commission decisions from the Court of Appeals for the Armed Forces to the Supreme Court are subject to the appellate review provisions of the MCA rather than the typical review provisions of the UCMJ.

Section 11: SCOPE OF REVIEW OF DETENTION-RELATED DECISIONS

Section 11 would make several changes to the scope of judicial review of detention-related decisions. First, it would strike the portions of the Military Commissions Act that had limited the scope of review by the DC Circuit to questions about the final judgment’s consistency with the standards and procedures of the MCA and with the Constitution and laws of the United States. This would seem to permit the reviewing court to reconsider factual findings by the lower court as appropriate. Second, this section would make some cosmetic changes to 10 U.S.C. § 950(j)(b) to make it clear that, under the other sections of this Bill, military commission procedures and actions can be reviewed for consistency with provisions of law other than the procedures prescribed by the MCA.

Finally, the section would make similar changes to the subsection of the Detainee Treatment Act of 2005 dealing with judicial review of the detention of enemy combatants. The Bill would strike those sections limiting the scope of review of final decisions of Combatant Status Review Tribunals and military commissions to the same two questions discussed above.

Section 12: REPEAL OF PROHIBITION ON TREATY OBLIGATIONS AS ESTABLISHING GROUNDS FOR CERTAIN CLAIMS

Section 12 would repeal Section 5 of the Military Commissions Act, which barred litigants from invoking the Geneva Conventions as a source of rights in habeas corpus or other civil actions. Under the new law, the courts would have to decide which of the provisions of the Geneva Conventions provide litigants with judicially enforceable rights. In combination with Section 3 of this Bill, this provision would allow defendants in military commission proceedings to claim that aspects of the commissions are inconsistent with the Geneva Conventions, and would require courts to invalidate provisions found to be inconsistent.

Section 13: IMPLEMENTATION OF TREATY OBLIGATIONS

Section 13(a)(1)(B) would strike the provision in the MCA that prohibits U.S. courts from using foreign or international law as the basis for interpretations of the statutory war crimes listed in 10 U.S.C. 2441(d).

Section 13(a)(2) would scale back the President’s authority to unilaterally interpret the Geneva Conventions. It would strike the explicit grant of interpretive authority given to the President by the Military Commissions Act and would modify the President’s authority to promulgate administrative regulations for treaty violations by making his power “subject to congressional oversight and judicial review.” This provision also emphasizes the reciprocal nature of the laws of war by requiring the President to notify other parties to the Geneva Conventions that he expects them to treat United States citizens in a manner consistent with the standards he lays out in his administrative regulations and under the provisions of law which criminalize certain war crimes.

Section 13(b) would add three new war crimes to the enumerated list that was added by the Military Commissions Act at 18 U.S.C. § 2441(d): denial of trial rights; cruel, inhuman, or degrading treatment or punishment; and certain other violations of Common Article 3 of the Geneva Conventions. Note that § 2441 applies to acts committed both within and outside the United States.

Section 13(b)(1) would make it a federal crime to intentionally deny a person the trial rights guaranteed by Common Article 3 of the Geneva Conventions, to wit, the right to a trial before “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The statute apparently leaves it to the judiciary to determine what a regularly constituted court is and to decide which judicial guarantees are recognized as indispensable by civilized peoples.

Section 13(b)(2) would make it a crime to subject (or conspire or attempt to subject) a person in the custody or under the physical control of the United States Government to cruel, inhuman, and degrading treatment. “[C]ruel, inhuman, and degrading treatment” is given the same meaning as in the Military Commissions Act, see RCA Sec. 13(b)(2)(B), where it is defined to mean “cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.” 120 Stat. 2600 § 6(c). As this definition is still quite nebulous, the statute again appears to leave it to the judiciary to fill in its content. Note also that this provision supplements the existing crime of cruel or inhuman treatment in 18 U.S.C. § 2441(d)(1)(B) by providing for the punishment of certain acts of cruel, inhuman, and degrading treatment that do not fit within the more narrow definition in that section.

Section 13(b)(3) would empower courts to punish certain war crimes even if those violations are not specifically enumerated in 18 U.S.C. § 2441. Specifically, it would criminalize unenumerated violations of Common Article 3 as long as those acts would be punishable be death or confinement for more than one year under the Uniform Code of Military Justice.

Section 13(b)(4) would make a few substantial changes to the clauses defining the existing crime of cruel and unusual treatment. The crime requires proof of “an act intended to inflict severe or serious physical or mental pain or suffering.” This provision would change the definition of serious physical pain to include injuries that involve serious physical pain, as contrasted with the currently required of “extreme physical pain.” It would also strike the categorical exclusion of cuts, abrasions, or bruises from types of physical disfigurement that qualify as serious physical pain. Finally, it would strike from the definition of serious mental pain or suffering the requirement that mental harm be “non-transitory,” suggesting that some acts will be banned even if their effects are only temporary.

Section 14: RESTORATION Of HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES

Section 14 would repeal the provision of the MCA that stripped federal courts of jurisdiction to consider habeas applications filed by individuals properly determined to be enemy combatants and individuals awaiting such a determination. Under the Bill, such applications could be considered by courts according to the usual rules of habeas jurisdiction. This provision would dramatically strengthen the federal judiciary’s role in assessing the validity of military detentions and military commission procedures.

Section 15: EXPEDITED JUDICIAL REVIEW OF MILITARY COMISSIONS ACT OF 2006.

Section 15 would provide for expedited judicial review of actions challenging the legality or constitutionality of any provision of the Military Commissions Act. Actions under this provision would be filed in the District Court for the District of DC and appeals would be heard by the DC Circuit. Importantly, the law would provide that final and interlocutory judgments by the DC Circuit are reviewable as a matter of right by direct appeal to the Supreme Court. The law also mandates that all relevant courts should expedite the disposition of cases under this section to the greatest possible extent.

Section 16: EFFECTIVE DATE

Section 16 would make all of the changes in the Bill, except for the revisions to the War Crimes Act, retroactive to October 17, 2006 (the date of the enactment of the MCA) and would explicitly make the changes applicable to pending cases.