What Every American Needs to Know about the Military Commissions Act

Center for Defense Information

For Immediate Release
Office of the Press Secretary
October 17, 2006

President Bush Signs Military Commissions Act of 2006

Military Commissions Act reestablishes special terrorism courts

Fueling debate over counter-terrorist intelligence interrogation, Congress on Sept. 29, 2006, cleared S.3930, entitled The Military Commissions Act of 2006 (MCA), which still awaits the president’s signature as of Oct. 10, 2006. The MCA creates new terrorism courts housed within the U.S. military, providing for trial before a jury of U.S. military officers presided over by a military judge, and otherwise operating under different procedures than regularly constituted U.S. courts.

A trial, among other things, is a fact-finding engine, and the conventional wisdom is that maltreatment produces bad facts. The MCA nevertheless envisions that statements gained through coercive interrogation may, in some cases, be admitted into evidence before military commissions. At the same time, the MCA purports to exclude evidence derived through torture. Under the MCA as it currently stands, admission of coercion-derived statements essentially would be at the discretion of the military judge, assessing its reliability and its usefulness at proving a case, applying potentially different standards depending on the date on which the interrogation had occurred.

Unlike Combatant Status Review Tribunals, and other mechanisms adjudging whether a detainee is something akin to an enemy soldier removed from combat, military commissions aspire to overlap with the role of regularly constituted federal courts by adjudicating criminal prosecutions and imposing criminal sentences, potentially including sentences of death.

Ironically, despite protestations that special terrorism courts run by the military are needed to handle significant cases, a civilian federal court already has prosecuted a would-be Sept. 11 hijacker, in the process admitting intelligence interrogation-induced “testimony” from alleged Sept. 11 mastermind Khalid Sheikh Mohammed (KSM). In its trial of self-proclaimed “20th Hijacker” and reputed paranoid schizophrenic Zacarias Moussaoui, the U.S. District Court for the Eastern District of Virginia admitted “testimony” derived from what were apparently KSM’s secret CIA interrogations, in the form of a written summary prepared by the U.S. government, read and signed by KSM, accompanied by an appended statement drafted directly by KSM. The combined writing was read out in court by a third party to provide the jury with the experience of hearing it spoken from the witness stand.

–Read KSM’s interrogation-induced “testimony.”
–View the prosecution-prepared Statement of Facts to which Mousaoui signed his name with the words “20th Hijacker.”

KSM, having served as a “witness” in that civilian trial, himself apparently will be brought before one of the newly formed special terrorism courts housed within the U.S. military.

Torture and cruel treatment

In a provision to be codified at 10 U.S.C. §948r(b), the MCA does purport to prohibit the admission of evidence gained through torture: “A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture.”

While the MCA does not define torture in that specific provision, a separate MCA provision in MCA section 6, which amends the War Crimes Act by adding a new 18 U.S.C. §2441(d), defines “torture” as involving the commission of an act “intended to inflict severe physical or mental pain or suffering” when the infliction of severe pain or suffering is “for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination.”

In turn, it defines “severe physical or mental pain or suffering,” in the context of the term “torture,” by reference to 18 U.S.C. §2340(2), which in turn defines “severe mental pain or suffering” as meaning “prolonged mental harm” connected with “the intentional infliction or threatened infliction of severe physical pain or suffering,” mind-altering substances, the threat of imminent death, or certain threats to third parties. As a result, it would not consider mental torture to be torture unless it was prolonged for some undefined time frame and connected with severe physical pain.

So once again, as with the so-called “torture memos” of the past, one is left parsing the meaning of severe pain and suffering. In a different provision amending a War Crimes Act prohibition on cruel or inhuman treatment, the MCA, together with or amending preexisting statutory language, looks to define severe or serious pain and suffering in connection with such factors as a substantial risk of death, extreme physical pain, burns, disfigurement, or significant impairment of a bodily member, organ function or mental functioning. And, in that constellation of considerations the MCA seeks to change “prolonged” to “non-transitory.”

However, by linking the term “torture” to the purpose of information-gathering, and not doing so with respect to its efforts to define “cruel and inhuman treatment,” the MCA War Crimes Act provisions imply a different standard where information-gathering is concerned.

As mentioned above, where information-gathering is involved, the War Crimes Act provisions in the MCA define torture as involving the commission of an act “intended to inflict severe physical or mental pain or suffering” when the inflicting of severe pain or suffering is “for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination.” And, where information-gathering is involved, the torture definition is thereby not limited by considerations of such things as organ failure or the risk of death.

But, as with past torture memos, the MCA arguably nevertheless once again “splits hairs” about degrees of abuse, and leaves open the precise nature of what is meant by pain and suffering in the context of information-gathering. And, on its face it declines to acknowledge mental torture to be torture, unless it is prolonged and linked with physical torture.

Coerced evidence admitted

Moreover, as mentioned above, the MCA permits the admission of coerced statements under some circumstances, leaving much of the determination to the discretion of the military judge.

A chronological “line in the sand” is drawn based upon the Dec. 30, 2005, effective date of the Detainee Treatment Act (DTA), which contains the McCain Amendment purporting to ban the mistreatment of all U.S. detainees.

The MCA provision to be codified at 10 U.S.C. §948r(c) provides that, with respect to interrogations occurring prior to Dec. 30, 2005, evidence gained by coercive means may be admitted, essentially at the military judge’s discretion. The standard for pre-DTA interrogations is that a “statement … in which the degree of coercion is disputed” is admitted if under the circumstances “the military judge finds … the statement reliable and possessing sufficient probative value; and … justice would best be served by admission … into evidence.” “Probative value” generally means that the statement would be useful at establishing a fact important to the proceedings.

Under §948r(d), for post-DTA interrogations, the standard is the same, with the added element that the military judge is called upon to determine whether “the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by [the DTA].” The DTA, in turn, looks to whether mistreatment violates the U.S. Constitution’s prohibitions on cruel, unusual, and inhumane treatment or punishment in the Fifth, Eighth, and 14th Amendments, which DTA notes is also the standard cited in the U.S. reservations to the Convention Against Torture.

As can be seen, in both pre-DTA and post-DTA cases, the trigger is whether the degree of coercion is disputed. Arguably this raises the prospect that, even if torture ever occurred, as long as there was a dispute about the degree of coercion, the military judge could admit a statement derived from torture or other degrees of maltreatment if the military judge found that (1) the level of coercion, e.g., the level of pain and suffering was disputed (2) under the circumstances presented to him he found the statement reliable and, if accepted as true, helpful at proving a salient fact, and (3) the interests of justice militate in favor of letting a statement in.

On the last point it should, of course, be noted that the interests of justice must separate out the question of the severity of a crime, whoever happened to commit it from the determination of the identity of the actual perpetrator.

And, again, given conventional wisdom that maltreatment produces bad information; the standard of statement reliability begs the question of how useful maltreatment-derived statements would be in the first place towards establishing facts.

Self incrimination

The U.S. Constitution’s Fifth Amendment provides that no defendant may lawfully “be compelled in any criminal case to be a witness against himself.” The MCA attempts to narrow the scope of that provision to apply only to testimony taking place directly before military commission proceedings, not interrogations, even when those interrogations induce statements that are themselves later brought into evidence before those very same proceedings.

In a provision to be codified at 10 U.S.C. §948r(a), the MCA states merely “No person shall be required to testify against himself at a proceeding of a military commission.”

DOD military lawyers indirectly overseeing CIA

To the extent prosecutors seek to introduce the product of Central Intelligence Agency (CIA) interrogations as evidence before military commissions, military judges could end up reviewing CIA interrogation practices and thereby indirectly serve as checks and balances on them. President George W. Bush delivered a Sept. 6, 2006, speech on detainee policies in which he confirmed that the CIA has been serving as the lead agency for secret imprisonments and interrogations outside U.S. territory of a select number of alleged high-value terrorism suspects. He announced that alleged Sept. 11 mastermind KSM and thirteen other such detainees most recently held by the CIA would be transferred to DOD custody for incarceration by Joint Task Force-Guantanamo Bay (JTF-GTMO) to face trial before military commissions. (Note also that the prospect has not necessarily been ruled out that secret CIA interrogations will continue to take place in the future.)

At a time when DOD detainee standards have been “ratcheted up,” through administrative rulemaking and otherwise, it will be military judges, coming from the legal culture of a robust military justice system, that will be examining and passing judgment on how the CIA conducted itself in its handling of alleged “high-value” al-Qaeda detainees such as KSM. That legal culture arguably is one in which respect for rule of law potentially can be equated with military effectiveness, dovetailing with discipline, respect for the command structure, and a sense of duty and honor. It was a military attorney from the JAG system, assigned as military commission counsel under the old military commission system, who, in his zeal to represent his alleged terrorist client, filed suit in civilian court against his own Secretary of Defense. Eventually, after various procedural twists and turns, including a change of venue, the Supreme Court’s decision in Hamdan v. Rumsfeld, 05-184, slip op. (U.S. June 29, 2006), held military commissions in their previous form unlawful. And if KSM comes before a military commission as planned, it will be up to a military judge to determine whether anonymous allegations that, for example, KSM was subjected to CIA waterboarding, now explicitly outlawed for DOD interrogations, are credible and color KSM’s statements sufficiently to render them inadmissible.

Appellate review limited

The discretion of the military judge to admit coerced testimony, based upon his view of the totality of the circumstances and the interests of justice, arguably is expanded by the fact that while a case may be reviewed by the convening authority (the Secretary of Defense or his designee), §950f, a newly created Court of Military Commission Review), §950g, the U.S. Court of Appeals for the D.C. Circuit, §950g, and the U.S. Supreme Court, §950g, the MCA purports to limit review by the Court of Military Commission Review and the D.C. Circuit to matters of law.

At the same time, an additional element the military judge is to consider with respect to coerced statements made in post-DTA interrogations is the meaning of cruel, unusual, and inhumane treatment or punishment under the Fifth, Eighth, and 14th Amendments. Such a determination is a matter of law, even if a subjective determination parsing levels of cruelty and inhumanity might be argued to be a dispute of fact. But, however, determinations of how any level of cruelty, pre-DTA or post-DTA, impacts on the credibility of a statement, however factual, also could be argued to be questions of law, to the extent there is the matter of “where to draw the line,” coupled with questions over the capacity of a military judge to determine a particular detainee’s “breaking point” or how to weigh statements made under duress. In the end however, the admission of any maltreatment-induced statement could encounter stiff constitutional obstacles, undermining the pre-DTA/post-DTA distinction to begin with.

Additional thoughts

There is, of course, a necessity that government action conform to rule of law, and the Constitution in particular. Among other reasons, this is because the government is a creature of law to begin with.

To illustrate, if Donald Rumsfeld travels overseas, with the U.S. Constitution he travels as secretary of defense and draws a taxpayer-funded salary, both made possible by the Constitution. Without the Constitution he would merely be a tourist.

Moreover, rule of law, including a foundational sense of right and wrong, forms a bedrock of American strength and prosperity, a force which can and should serve as an antidote to a terrorism that ultimately is a form of lawlessness, in many ways a throwback to the anti-sovereign renegades and warlords of old.

But beyond rule of law considerations, as an additional practical and operational matter, curiosity can be raised over why, in military commission proceedings, the need is felt to admit evidence that is potentially tainted. One rightly can ask whether there should be concern over what is implied by they who advocate the possible admission of tainted evidence. Are they raising the implication, accurate or not, that the preparation of cases against alleged terrorists might potentially falter without the tainted evidence?

This stance arguably risks sending the wrong message about the vitality of U.S. counter-terrorist intelligence-gathering five years after Sept. 11, 2001, and more generally American strength and readiness against asymmetric threats. This is especially the case, given the nature of terrorism, that terrorists essentially are a blend of spies, saboteurs, and “old-time” anti-sovereign, lawless renegades. As a result, counterterrorist operations ultimately are called to be counter-criminal operations depending upon the capacity successfully to identify, assess, and root out threats individual by individual, even while seeking also, in other areas of policy, to snuff out the seeds of terrorism by thwarting recruitment, fund-raising and addressing related terrorism-related social, economic and mental health issues.

Nevertheless, this article’s focus is more on the admission of evidence in trial proceedings, indirectly impacting interrogation standards. With respect to interrogation standards, not dealt with squarely by this article are MCA provisions regarding, for example, War Crimes Act provisions, applying even when the results of interrogations are not submitted as possible evidence in legal proceedings.

Appendix

MCA excerpt on coerced statements:

Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

(b) Exclusion of Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.

(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

--(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

--(2) the interests of justice would best be served by admission of the statement into evidence.

(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

--(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

--(2) the interests of justice would best be served by admission of the statement into evidence; and

--(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

(excerpted from http://frwebgate.access.gpo.gov/
cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf)

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