Remarks on the Military Commissions Act

by: John B. Bellinger

Full Remarks and Q & A

January 19, 2007

48 HARV. INT'L L.J. ONLINE 1 (2007)

John B. Bellinger is the Legal Adviser to the U.S. Secretary of State.

These remarks have been excerpted from an informal presentation Mr. Bellinger gave to Harvard Law students on November 3, 2006, and have been edited for clarity and brevity. To view the full text of Mr. Bellinger's remarks along with the text of the Question & Answer session he hosted following his remarks, please download the PDF above.

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The Military Commissions Act was signed by the President a few weeks ago, and a lot of questions have been raised around the world in response. In fact, I just returned from London last night, where I was giving a talk at the London School of Economics explaining the legislation and its implications. Because I know that people are very interested in this topic right now, I jumped at Jack Goldsmith’s invitation to speak to you about it. I have a few things to say to begin, after which I hope to move on to an open discussion.

Since 2005, when I became the Legal Adviser to the Secretary of State, detainee issues have arisen as one of the more troubling challenges facing Secretary Rice as she engages in diplomacy around the world. These issues have caused great controversy among friends, allies, and critics alike. And, the more involved Dr. Rice has become in the debate, the more opportunities I have had to take the lead in shaping the State Department’s approach to the topic.

The legal complexity of detainee issues makes it difficult for embassies and ambassadors around the world to appraise and discuss the subject. Unfortunately, over the past three or four years, the State Department has not done its best to answer questions, clarify policies, or explain its actions to our allies. Dr. Rice has asked me to address this communications problem.

I am happy to answer as many questions as I can later on. Given that this is a legally educated audience, however, I would prefer first to go into more detail about the legal decisions that we have made with respect to the detention, holding, and trial of terrorists. As I cover these issues, I want you to ask yourself whether we are going about this correctly from a legal perspective. Do we have it legally wrong, and if so, how should we do it differently, in a way that would work better? To begin this discussion, I am going to address six of the questions that I get asked most frequently as I travel the world.

First, what is our detention authority to hold these people to begin with? Second, were we required to release them all after the war in Afghanistan seemed to end in 2002? Third, can we and do we have the legal authority to hold these detainees indefinitely without trial? Fourth, why not simply try them in our criminal courts? Fifth, are these military commissions unfair? And lastly, do we finally have it right, now?

In the past year, there has certainly been enormous evolution in our policies and the laws in the area. That is one of the things I would emphasize, starting with the McCain Amendment in December of last year; the Supreme Court’s Hamdan decision in June, which found that common Article 3 of the Geneva Conventions applies; the President’s decision last September to bring all individuals held in classified locations to Guantánamo and give them access to the International Committee of the Red Cross (“ICRC”); the promulgation of new Defense Department interrogation and treatment directives, which cover everybody held by the Defense Department; and, ultimately, the signing of the Military Commissions Act last month.

So, our policies have evolved. The question is, have we gotten it right? Let me start with the first question: what is the legal authority for detaining the people we have? The vast majority of the people who are being held in Guantánamo, the most controversial detention area, were captured around the end of 2001 and the beginning of 2002, in or around Afghanistan and Pakistan. So what was our detention authority for holding those individuals? My first point is that this was not a police operation. We did not have police jurisdiction in Afghanistan. However, it was within our right under international law to defend ourselves against an armed attack by a group. Accordingly, we and our allies were acting in self-defense under international law. You will recall that, at the time, we gave the Taliban an ultimatum: either turn over the Al Qaeda people in your camps, because we suspect they are responsible, or we will take action against you.

This is something that happens periodically under international law, when a country has allowed a non-state actor to use its territory to launch attacks against someone else. If that country is unwilling or unable to do something about the aggressors, another country has a right under international law to take action to defend itself. The U.N. Security Council reaffirmed that right, saying that under Article 51 of the U.N. Charter, we were entitled to take action in self-defense. That is what our coalition forces were doing in Afghanistan. They were not there as policemen. They were not there to charge and arrest people or produce incriminating evidence, because we did not have criminal jurisdiction in Afghanistan. Yet, we had the legal authority to hold people as enemy combatants under international law. Under international law, articulated in the U.N. Charter and confirmed by the U.N. Security Council, we had the authority to use force, and part of using force is the authority to detain individuals.

In any war, a state can detain people. In our discussions throughout Europe over the last year we noticed a developing divide, with us tending to characterize this conflict as a war and the Europeans saying otherwise. But we have since narrowed that divide by making it clear that we do not think we are at war with every terrorist group everywhere. Many Europeans, for their part, have agreed that from 2001 to 2002 at minimum there was, in fact, a war. There was a legal state of armed conflict in Afghanistan, where we were fighting the Taliban and Al Qaeda. As a result, we did have the legal right to pick these people up. We did not need evidence against them to pick them up, and we did not have to charge them beforehand to pick them up because we were not doing so under police jurisdiction. Our soldiers picked them up in a time of war. So that is the answer to question one: we had the original authority to take these people in.

This begs the next question: after holding these detainees, was there a period of time after which we had to release them? In any normal state of armed conflict, and under customary principles of international law, you have to release a prisoner when the hostilities are over. When the principal fighting in Afghanistan ended and the new Karzai government came into power in June of 2002, were we then obligated under law to turn everybody over at that point? The State Department thinks that it is very clear that the war with both the Taliban and Al Qaeda is not over. Certainly, the Taliban continues fighting in Afghanistan. If you talk to President Karzai and ask him if he thinks the conflict in Afghanistan with the Taliban is over, he would definitely tell you that it is not. In fact, Coalition forces continue to be killed in Afghanistan, as do hundreds of Taliban. So the war with the Taliban is not over.

Similarly, the conflict with Al Qaeda did not end in June 2002. Al Qaeda, while diminished, continues to attack us in different places around the world. Bin Laden, al-Zawahiri, and the other leaders of Al Qaeda have not run up the white flag and stated that it is over. So we conclude that we are still in a legal state of armed conflict with the Taliban and with Al Qaeda.

The next question is: can we now hold these detainees indefinitely without a trial? This is the most frequent charge that we receive. Critics basically say that it is illegal to do so. But you have to deconstruct the charge on a couple of different levels. One is the “indefinite” point, while the other is the “without trial” point. I will take the latter point first. The problem with the “without trial” charge is that it implies that the detainees are criminal suspects. Now, I will tell you candidly, I was not trained in the laws of war. I have had to learn a lot about the Geneva Conventions and customary principles of international law. But the ICRC, although they do not talk publicly about it, will say that we have a right to hold without trial people who were captured in an armed conflict. In fact, they will even say that the people who were captured in Afghanistan – the Taliban, Al Qaeda – are being held as combatants in an armed conflict and that there is no requirement to try them.

My point here is that we are confusing two bodies of law by suggesting that people captured in an armed conflict have to be tried. In any normal armed conflict – World War I, World War II – when you captured combatants there was no expectation that they would be tried. They were simply held until the end of the hostilities. Now, the problem is that the current situation is obviously different from any kind of normal armed conflict because we do not know how long this war will continue. That gets to the first point – the “indefinitely” charge. Of course, in any war, you don’t know how long the war is going to go on. We have had wars that have gone on for five years, ten years, thirty years, one hundred years. Nevertheless, under customary principles of international law, you may hold the people until the end of a conflict.

But again, that is very troubling in this context. Thus, the question is what to do about that. It seems to us that people should not be released simply because it is troubling that they might have to be held indefinitely. And it doesn’t make sense to say that you can only hold people if there is a definite end in sight. Under that logic, we would immediately release all the people captured during an ongoing conflict, just because we could not predict an end to hostilities. What we have tried to do is come up with a middle ground. We have tried to come up with review mechanisms, for example, so that we periodically review the cases of the individuals who are being held to determine whether they continue to pose a threat. But we are struggling, because there is no definitive book on the shelf that tells us what to do.

It basically comes down to this: you are not required to try people who are held during a conflict and you can normally hold them indefinitely. But in this case, it is obviously quite troubling that they are being held indefinitely. So why don’t we simply try them in our criminal courts? Two points here. The first point, as I’ve tried to explain, is that people who have been captured as part of an armed conflict do not have to be tried in criminal courts. We are holding them under the laws of war, also known as international humanitarian law, and not because they are criminal suspects. There is an impression that the government is just being obstinate about refusing detainees trials in criminal courts, and that giving detainees “their day in court” would somehow resolve the indefiniteness of the conflict. However, my second point is one that I think you as a group will understand, but one which we have a difficult time explaining in Europe.

Our criminal courts simply do not have extraterritorial jurisdiction over the vast majority of these individuals or the vast majority of their activities. These people had never set foot in the United States or planned specific criminal acts in violation of our federal criminal statutes. If you were an Egyptian, Yemeni, or a Saudi, it was not a violation of our federal criminal laws to travel to Afghanistan, train in an Al Qaeda camp, or become a member of the Taliban. These were not violations of our federal criminal laws.

One thing that all of our countries have learned since September 11th is that we are facing a different kind of terrorism than we used to face. Now, the terrorists reside inside our countries, yet are linked to events that occur thousands of miles away. We have to expand the reach of our criminal laws now, and there has been a flurry of activity in the United States and other countries to do just that.

But the current effort to expand our criminal laws cannot be made retroactive. For instance, one of the principal criminal statutes that we use against terrorism is something called the Material Support for Terrorism Statute. Providing material support to a terrorist organization is a crime. Before September 11th, that statute only applied to conduct inside the United States. We have since extended it. But we cannot make that change retroactive. Therefore, even if we wanted to try our detainees in our criminal courts, our courts would not have had jurisdiction to take the majority of the cases, since, in most instances, the defendants would not have violated our federal criminal statutes.

The people who we have tried previously in the familiar cases – the U.S.S. Cole bombing, the World Trade Center bombing – were people who had committed specific terrorist acts by blowing up our embassies, blowing up our warships, and things like that. But the majority of our Taliban and Al Qaeda detainees cannot be tied to a specific act, and so cannot, by jurisdictional rules, be tried in our criminal courts.

A further problem is the practical evidentiary difficulty of trying somebody in our criminal courts. For the most part, the detainees were picked up by our soldiers on the battlefield in the middle of a hot war in Afghanistan. Our federal courts require a chain of custody to any evidence presented. Thus, they would expect an American soldier having captured someone holding a hand grenade to have slipped the hand grenade into an evidence bag, marked it, and made clear the chain of custody, person to person, all the way back to the United States. Our federal courts would expect people all along the chain of custody, including the soldier from the battlefield, to testify. This, practically speaking, is extremely difficult.

Turning back to the lack of jurisdiction issue, I want you to imagine yourself a government lawyer. Let’s posit for a moment that we really do have a bona fide Al Qaeda operative, and that he’s been captured on a battlefield in Afghanistan. What do you do? How do you try that person? And if they violated a particular statute without benefit of a chain of custody, what do you do? That’s one of the reasons why we decided that we do not want to just hold them all, but that we want to try those who have actually committed crimes before military commissions.

The above gives rise to a few issues. One, I think people choke on the “m” word – military. This can be attributed to the fact that virtually no one in this room has any experience with military justice. In our country, though, a country with one of the largest armies in the world, we have a system of military justice that parallels our civilian criminal justice system. It’s a well-functioning system with well-trained judges. If anything, the judges in a military system are more independent and less political than federal judges. Federal judges are selected by a partisan President, while judges on military courts are individuals who have had ten, twenty, thirty years of training in military law and are, in essence, independent military lawyers. So, given our jurisdictional inability to use the federal criminal laws and courts, and given the fact that we were engaged in an armed conflict with the Taliban and Al Qaeda, it seemed as if military commissions were the only effective way to try any detainees.

As an alternative, people have asked why we couldn’t use the existing court martial system, which is what we use to try our soldiers. The court martial system, though, is basically designed to try our soldiers who are inside the United States. It is where we can easily deal with them, with both speedy trial rights and normal evidentiary rules attached. It was just not the place for a new category of trials. Furthermore, we did not have a broad framework of violations under the laws of war. As a result, we decided on military commissions, which, as shown in a historical analysis in the Hamdan decision, is a concept that dates back at least 100–150 years. Thus, we wanted to use military commissions to try these people.

This leads me to my last couple of points. The way military commissions were set up by the President, by executive order, was obviously problematic, but military commissions themselves are not unconstitutional. The Supreme Court ruling in the Hamdan decision was not that military commissions are unconstitutional, which critics frequently get wrong. Instead, the Court just noted that the President had not followed the proper procedure in setting them up. In response to this, Executive Branch lawyers have since engaged in setting up the military commissions “properly.” In my mind, we have now addressed all of the concerns raised by the Supreme Court and our allies with respect to the President’s original order.

I recently had an opportunity to look back at a list of concerns regarding the way military commissions were originally set up. British Attorney General Peter Goldsmith, an individual with whom I had negotiated the return of British detainees, raised these concerns to me. Looking at his list, I realized that, with the Military Commissions Act we just passed, we have now addressed all of his concerns.

One concern was that the accused originally did not have a right to be present at all times to hear evidence presented against him. The reason for this original set-up was protection of sensitive evidence. One can imagine a situation where a member of Al Qaeda is on trial, and a key piece of evidence came from a human penetration of Al Qaeda or a sensitive communications intercept. In that situation, the government would be faced with the difficult choice between forgoing prosecution of a known terrorist and giving up a communication source that would be critical to prevent future attacks. As a result, the original plan was a compromise which allowed the evidence to be introduced, so that the accused’s lawyer, but not the accused, could hear it in its entirety and argue against it. That was troubling to people for obvious reasons. In the recent Military Commissions Act, we reversed course. The accused now has the right to be present at all times to hear all of the evidence against him. If that means we have to reveal intelligence information, then we will just have to do that.

The other main concern among the multiple that have been addressed was the lack of independent appeal into Article III courts. Our international partners were particularly concerned because they didn’t have a lot of experience with our military system. Military courts, to be candid, struck them as a third-world concept. They did not understand how the United States could possibly be engaged in something like this. In military commissions, however, a direct appeal is available, first to the D.C. Circuit and then ultimately up to the Supreme Court. Thus, there’s a complete, independent review through Article III courts.

The above amounts to a quick summary of some of the questions I field most frequently. There are many, many others out there. Have we gotten this right? I can tell you with certainty that our international partners don’t think we have. I travel throughout Europe attempting to address their concerns, listening to what they have to say about these matters. But there has been significant evolution in our policies, with heightened legal standards. It’s difficult to say, at this point, that military commissions are not fair.

The main thing I will leave you with is that, while people are uncomfortable with where we are, there are no easy answers, and there are no easy alternatives. I cannot tell you that we have clearly gotten the law right – the law is very hazy concerning how you hold or detain members of a terrorist group who attacked one’s country without setting a foot inside. This is a question that I think all societies are going to have to deal with moving forward. And again I ask, how would you do each of these things differently? Certainly we have learned a lot as we have moved along, but how would you do it differently in a way that would actually work? So let me stop there. I’m happy to engage in a dialog and field questions....


To view the entire article, including the Question & Answer session hosted by Mr. Bellinger following his remarks, please download the PDF above.

Suggested Citation: John B. Bellinger, Remarks on the Military Commissions Act, 448 HARV. INT'L L.J. ONLINE 1 (2007), http://www.harvardilj.org/online/91.