Tuesday, September 11, 2007

6 Years at Gitmo: A Travesty, or A Good Start?

Today, the Columbia's chapters of the Federalist Society and ACS welcomed Professor George Fletcher, of Columbia Law School, and David Rivkin, of Baker Hostetler. Mr. Rivkin and Professor Fletcher debated the merits of the Military Commissions Act, and discussed other issues relating to the detention, treatment, and trial of detainees since 9/11.

After a brief introduction by Federalist Society President Nate Berry touching upon the solemnity of the day and importance of vibrant political debate, the debate began with Mr. Rivkin's remarks.

Mr. Rivkin opened his allotted time by rejecting the varied criticisms of the Bush administration's legal policy as an unprecedented assault on Constitutional protections. In great detail, Mr. Rivkin discussed the procedures under the Detainee Treatment Act as essentially fair.

Mr. Rivkin historically linked the current policies as to unlawful combatants with longstanding legal traditions and emphasized that the news-making cases were marginal and atypical.

The District of Columbia Court of Appeals is the relevant reviewing appellate court, and its scope of review is limited to procedural and constitutional questions. This scope of review has been upheld during World War II by the Supreme Court. Discussing habeas corpus, Mr. Rivkin dismissed the criticism that appellate courts would be unable to review questions of fact (i.e. if a petitioner is actually an enemy of combatant) by pointing to case law that would permit a review of pertinent facts.

In closing, Mr. Rivkin admitted that these procedures are limited when contrasted with domestic criminal law. However, he emphasized that the "laws of war" paradigm should be the basis of comparison because "if this isn't a state of armed conflict, I don't know what is," and in that contrast, the procedures relating to War on Terror detainees are "far more austere," in his words.

Professor Fletcher began his remarks with a professorial introduction, laying out in plain terms the academic points of the current habeas corpus debate. His focus was on fundamental questions: does the Constitution authorize the military commissions? They are operated by the executive branch, but, unlike similar court martial proceedings, their jurisdiction is over non-U.S. soliders. However, court martials are different because they are constitutionally designed as tools for managing the armed forces. Without a specific constitutional grant over the power to adjudicate cases involving enemy combatants, these military tribunals exist outside of the Constitution.

Professor Fletcher then offered an historical survey of the growth of these military tribunals. He emphasized that these tribunals had never received legislative consent. One 1920 statutory reference indicated that these tribunals were an expression of the international law of war. This proposition was only tested in Hamdan in 2005. Hamdan decided two issues: conspiracy (the central charge) was not part of the "law of war" and thus could not be charged in a military tribunal. The second central issue was Hamdan's inability to be present during testimony against him in the military tribunals. The court rejected this as a violation of the Geneva Conventions Common Article III. Five Justices applied the Geneva Conventions, but avoided making a constitutional decision.

Congress responded to Hamdan by creating a detailed set of military courts, however Article I of the Constitution does not grant Congress such a power. This deeply troubles Professor Fletcher.

Moving to address the "law of war, " accepting Mr. Rivkin's assertion that we are in the midst of war. His problem is that soldiers are not guilty of a crime in making a attack. Prisoners of war are not subject to prosecution. He views the problem as the Bush administration's attempt to pick and choose their favored attributes from both civil and wartime adjudicative procedures. This is the extraordinary development that merits critical attention.

Mr. Rivkin's brief response addressed some jurisdictional issues that Professor Fletcher discussed. Then Mr. Rivkin confronted a few "questions of fact." Military tribunals are not Article II courts, but rather under Article I. He then assured us that there are plenty of Supreme Court cases that upheld Article I bodies are appropriate for criminal adjudication, provided there is opportunity for judicial review. He also distinguished between the prosecutorial immunity for lawful enemy combatants to the lack of protection afforded to those labeled with the stigma of "unlawful enemy combatant."

Unfortunately, time did not permit Professor Fletcher's full response. His brief reply was to reject Mr. Rivkin's argument that the legacy of "unlawful enemy combatants" is longstanding, by describing the relevant WWII case initiating the doctrine. Professor Fletcher concluded by imploring the prosecution of actual and existing war crimes.

The exchange was observed and enjoyed by an over-flowing crowd of students and Columbia ACS would like to thank both Professor Fletcher and Mr. Rivkin for their lively debate and insights.

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