Is the Military Commissions Act Wise?

The debate about the constitutionality of the Military Commissions Act of 2006 ("MCA") has featured much thunder, but not a great deal of light. In my view, critics of the MCA like Richard Epstein disagree not so much with the Act's strictures as with its very premise: that we are in a state of real, not rhetorical, armed conflict with al Qaeda, the Taliban, and other jihadist groups. Even most critics of MCA would agree that, when the United States is "at war," peacetime legal rules are supplanted by war's unique legal architecture. Individuals subject to the MCA's strictures are not criminal defendants due the full panoply of constitutional protections. Rather, they are enemy combatants entitled to a great deal less. More specifically, critics argue the MCA denies habeas and violates due process. But it does neither, and in fact expands the rights afforded to enemy combatants to an extent unprecedented in American history.

The MCA builds on the 2005 Detainee Treatment Act ("DTA"), which made the D.C. Circuit the exclusive venue (with the possibility of Supreme Court appeal) for handling legal challenges by detainees to: (1) their designation as enemy combatants by a Combantant Status Review Tribunal (CSRT) and (2) the validity of a Military Commission ruling that they were guilty of war crimes. The MCA greatly refines the Military Commission-related procedures, while leaving the CSRT procedures unchanged. It establishes a new body - the Court of Military Commission Review - as the final entity within the military establishment for review of the decisions of Military Commissions, and specifies that the D.C. Circuit's jurisdiction does not attach until all intra-military system appeals have been exhausted or waived. The MCA also reaffirms that, outside the DTA-provided judicial review system, "[n]o court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States," provided that he has been determined to be an enemy combatant.

Critics claim that the MCA violates habeas because it allegedly bars review by the Judicial branch (as opposed to by military judges, who are part of the Executive branch) of any factual issues arising out of CSRT or Military Commission proceedings. This argument reads far too much into the MCA's language, which upholds the basic teaching of Ex Parte Milligan that it is unconstitutional to bring civilians before Military Commissions if the Article III courts are open and functioning. Under the MCA, the D.C. Circuit has jurisdiction to review the facts establishing detainees' designation as combatants. This type of review is exactly what the Supreme Court undertook in Ex Parte Quirin when it evaluated (and rejected) the petitioners' contention that they were civilians rather than combatants. The MCA thus allows for precisely the habeas review critics claim is absent.

To be sure, Milligan dealt with an American citizen tried by a military commission on American soil. This distinction is significant since, even in the aftermath of Rasul v. Bush, an enemy alien held outside the United States is not deemed subject to the constitutional protections at issue in Milligan. The view that aliens held overseas are entitled only to statutory habeas, which can be enlarged, abridged, or even entirely eliminated by Congress, is entirely well-settled. The relevant cases range from the WWII case of Johnson v. Eisentraeger to the most recent Hamdan decision by Judge Robertson, who found that Mr. Hamdan's statutory habeas proceedings were governed by the MCA and that he was not due any constitutionally-based rights.

Overall, enemy combatants held overseas get more judicial review under the MCA than they ever received before and much more than they are constitutionally entitled to (which is none). As for alien detainees in the U.S., not only does the MCA preserve habeas by providing DC Circuit review, but, contrary to the critics' hand-wringing, the MCA does not apply to millions of non-citizens present in this country. Instead, only persons adjudged enemy combatants are governed by the MCA's strictures. Since the September 11th attacks, only two people located on U.S. soil have been designated enemy combatants, Messrs. Padilla and al-Marri. (Both of them, by the way, went through the traditional district court-centered habeas proceedings.)

Meanwhile, despite all of the critics' poetic exhortations of the Great Writ's virtues, the Supreme Court held in Swain v. Pressley (1977), and INS v. St. Cyr (2001), that the Constitution requires nothing more than a meaningful opportunity for judicial review of one's detention, and does not prescribe its form. Significantly, while the MCA removes access to district courts for non-citizen enemy combatants, it affords them robust judicial review procedures in the upper echelons of the federal judicial system.

I do not take limitations on judicial review available to detained unlawful enemy combatants lightly. Indeed, any restrictions on judicial review that entirely eliminate U.S.-based aliens' access to Article III courts may implicate the Suspension Clause of the U.S. Constitution. and are unnecessary under the current circumstances. But eliminating habeas is, of course, is not what Congress did, since enemy combatants held in the US receive judicial review, and those held outside of the US are treated consistently with the constitutional requirements as established by a long line of Supreme Court cases.

Not only does the MCA provide appropriate habeas rights, it also does not violate Constitutional due process requirements. The MCA provides more procedural protections to enemy combatants than did the military commissions upheld by the Supreme Court in Ex Parte Quirin. As a policy matter, one could argue that even more process should be given, but more process is not required as a constitutional matter.

The MCA, partially in response to the Supreme Court's Hamdan decision and partially to the way in which this decision was interpreted by the media and the academy, also prescribes that "[n]o person may invoke the Geneva Conventions, or any protocols thereto, in any habeas" action brought against the United States or any of its agents. As intended, this language renders the Geneva Conventions judicially unenforceable. However, the Geneva Conventions have always been unenforceable in U.S. Courts, and the MCA is merely stating a legal reality rather than effecting a substantive legal change. Despite many a claim that the Supreme Court in Hamdan made the Geneva Conventions applicable to the war against the Taliban and al Qaeda, the Court's holding does not extend beyond the claim that Congress incorporated Conventions' Common Article III into the provisions of the Uniform Code of Military Justice governing military commission proceedings. Thus I am not at all troubled by the MCA, which reaffirms that the only areas in which the Geneva Conventions have legal force are those in which Congress specifically provides.

The MCA represents a balanced approach to judicial review, eliminating repetitive challenges and banning forum shopping while preserving the essential elements of judicial review for detained enemy combatants, elements that go to the issue of their combatant status and their culpability for war crimes. As such, the MCA is consonant with the Constitution and our international law obligations. The critics who claim that even more due process is due to our enemies are really making a policy argument--and one without much merit.