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COPYRIGHT 2007 Harvard Society for Law and Public Policy, Inc.
A defendant's right to be present during trial is a touchstone of the American criminal justice system, and the precise scope of this right has substantial implications for the prosecutions of crimes involving terrorism. This Article explores the contours of the right to be present in the context of both military commissions and federal courts, examining what limitations, if any, might be placed upon it. The denial of this right by military commissions came under fire in Hamdan v. Rumsfeld. This Article questions the validity of such attacks by analyzing whether the right to be present in military commissions can be derived from the text of the Uniform Code of Military Justice prior to passage of the Military Commissions Act of 2006 and concludes that a defendant possesses no such right. This Article also explores the recent congressional response to Hamdan and examines whether the current scheme will adequately safeguard classified information. The Article then pursues a broader, and perhaps more important, inquiry: whether the procedures provided in Military Order No. 1, limiting the presence of the accused, could be adapted for use in trials in federal court. This inquiry begins by examining the precise boundaries of the right to be present under existing Confrontation Clause jurisprudence and concludes that this right could indeed be curtailed in certain, limited circumstances. The Article then proposes the incorporation of amendments into the Classified Information Procedures Act (CIPA) to allow for the removal of a defendant in limited circumstances, and outlines certain procedures that would pass constitutional scrutiny, at least in the first instance. The Article next confronts the problems that would arise in the case of a defendant wishing to proceed pro se and concludes that existing procedures allowing for the appointment of standby counsel are adequate to protect a defendant's right to proceed pro se. The Article concludes by noting that the proposed amendments to CIPA would vastly improve the ability to protect classified information in federal terrorism trials, but it also questions whether it would be more appropriate to allow terrorism prosecutions to proceed in military commissions rather than in federal court.
INTRODUCTION I. RECONSIDERING THE RIGHT TO BE PRESENT BEFORE MILITARY COMMISSIONS A. The Hamdan Litigation 1. The UCMJ and the Right to Be Present Prior to Congressional Alteration a. Impracticability Under Article 36, Subsection (b) b. "Contrary to or Inconsistent with" Under Article 36, Subsection (a) 2. The Geneva Convention and the Right to Be Present B. Congressional Response: The Military Commissions Act of 2006 II. LIMITING THE "RIGHT TO BE PRESENT" IN FEDERAL COURT: AMENDING THE CLASSIFIED INFORMATION PROCEDURES ACT A. The Right to Be Present and Federal Criminal Trials 1. Limiting Presence: The Practice in Sexual Abuse Prosecutions 2. Judicial Review of a Decision to Exclude a Defendant B. Using the Classified Information Procedures Act in Terrorism Trials: An Argument for Amendment 1. CIPA: History, Purpose, and Structure 2. The (Mis)use of CIPA in Terrorism Trials 3. Amending CIPA: Proposals for Change. III. THE PRO SE PROBLEM IV. CONCLUSION
INTRODUCTION
The events of September 11th fundamentally altered the way many think about the balance between freedom and security. Numerous areas of domestic and international law have undergone unprecedented change, (1) not the least of which involve the rights of the accused in judicial or quasi-judicial proceedings held before military commissions and federal courts. (2) The Supreme Court entered the fray, issuing opinions about the scope of the writ of habeas corpus, (3) the right to detain enemy combatants until the cessation of hostilities, (4) and the rights of U.S. citizens held as enemy combatants. (5) Although pronouncements on these larger jurisdictional issues were no doubt necessary, the legal debate involving the rights of accused terrorists and unlawful enemy combatants entered a new, arguably more important, phase: determining the substantive and procedural rights due to the accused.
The substantive rights at issue include, but are not limited to, the right to counsel, (6) the permissible limitations upon counsel communications, (7) and the scope of permissible discovery. (8) These and other related issues are substantially discussed in legal scholarship (9) and are actively confronted by lower courts. (10)
One right which has received little attention in legal scholarship, however, is the right of an accused to be present during trial. The lack of scholarly discourse stems primarily from the perception that the existence of the right is largely settled, even if its precise contours may not be. (11) It is well established that there are certain instances where a defendant must be present, and other instances where his presence is not fundamentally required for the proper administration of justice. A secondary reason for the lack of scholarly discourse is that the right to be present is not textually provided for in the Constitution. Rather, it is entwined with the right of confrontation, (12) and thus is often inadvertently overlooked. (13) Indeed, when discussing the right of confrontation, the legal literature typically relies only on the text of the Sixth Amendment, which provides a defendant the right "to be confronted with witnesses against him," (14) whereas a tetxtual analysis of the right to be present is usually absent. Finally, the Federal Rules of Criminal Procedure also provide a largely unqualified right to be present, (15) thus adding to the clarity of the right and seemingly reducing the need for scholarly discourse on the topic.
Nevertheless, a defendant's right to be present during the course of his trial remains fundamental. Given the important values that the right to be present serves for the individual defendant and the larger scheme of constitutional rights, any limitations on that right must be carefully considered. As a general matter, the defendant's presence helps ensure that the proceedings are, at a minimum, perceived as fair because the defendant is given the opportunity to confront any witnesses. Furthermore, the defendant is placed in the best position to test the veracity of the evidence proffered by the prosecution, increasing the likelihood that the government will take proper care to fully prove its case-in-chief before a conviction is rendered. (16)
While the right to be present is a touchstone of the U.S. criminal justice system, it is not without limits. Certain portions of criminal proceedings do not necessitate a defendant's presence to ensure a fair trial; in some circumstances defense counsel's presence alone may be sufficient. (17) Additionally, in limited circumstances, public policy interests have been invoked to justify restricting the defendant's right to be present. (18) The risk of undermining the fairness of the proceedings and the truth-seeking function of our justice system, however, increases proportionally with the amount of time that a defendant is excluded from the proceedings against him, particularly at trial. Cognizant of the proportional risk, the Supreme Court acts cautiously in permitting the exclusion of a defendant from portions of his trial, (19) and rightfully so.
In terrorism trials, the issue of presence manifests itself in the question of whether, and in what circumstances, the government may exclude the defendant from portions of the legal proceedings in order to prevent the disclosure of classified information and safeguard national security. Determining the flexibility of this right could greatly influence future legal decisions and, perhaps more importantly, shape future legislation.
Hamdan v. Rumsfeld (20) is the most significant ruling on this subject since the beginning of the war on terror. (21) This Article uses the various opinions rendered in the Hamdan litigation as the background for a discussion of the right to be present in military commissions. It then explores the extent to which Congress could, through legislative action, limit the right to be present in federal court during a terrorism trial.
This Article is divided into three Parts. Part I discusses the right to be present before military commissions. Part I.A examines the right to be present under the legislative framework of the Uniform Code of Military Justice (UCMJ) prior to Congress's recent alteration through the passage of the Military Commissions Act of 2006, and to a lesser extent under the Geneva Conventions. It concludes that neither guarantees an individual accused of terrorism the right to be present before a military commission. (22) Part I.B then considers the Military Commissions Act of 2006, which was Congress's response to the Hamdan decision, as it relates to the right to be present, and it considers whether the route chosen by Congress was appropriate and adequate to safeguard national security information.
Part II explores whether procedures like those promulgated under Military Order No. 1, allowing for the exclusion of the defendant from portions of his trial, would be permissible in federal terrorism trials, and suggests that any such procedures could be easily incorporated into the existing statutory framework of the Classified Information Procedures Act (CIPA). Part II.A frames the current understanding of the right to be present in federal court and concludes that although objections would certainly be raised, the federal courts could utilize procedures akin to those permitted by the President's initial order establishing the Military Commissions (23) and outlined in subsequent U.S. regulations. (24) Under such a scenario, the constitutionality of any limitations placed on a defendant's right to be present in a terrorism prosecution would be reviewed on a case-by-case basis on appeal following conviction. Part II.B pursues the more limited inquiry of whether provisions of CIPA could be amended to better protect a bona fide national security interest (25) while still providing adequate constitutional safeguards for the accused. This Subpart argues that CIPA provides an excellent structural framework in which to incorporate procedures similar to those initially promulgated for the military commissions along with other possible restrictions on the right to be present.
Finally, Part III examines the unique problems that may arise when a defendant seeks to represent himself pro se and what implications, if any, those potential problems have on the proposed CIPA amendments. This Article concludes that the unique problems that pro se representation present can be adequately addressed using the present understanding of the right to be present and the flexibility granted to the trial court to appoint standby counsel. This Article concludes by briefly discussing the possible advantages and disadvantages of prosecuting terrorists in federal court and questioning whether such prosecutions would be more appropriate in military commissions or similar military justice apparatuses.
I. RECONSIDERING THE RIGHT TO BE PRESENT BEFORE MILITARY COMMISSIONS
A. The Hamdan Litigation
The Hamdan litigation concerned the purported conflict between the procedures governing military commissions and those governing courts-martial under the UCMJ as it existed prior to congressional alteration. This Subpart examines the pre-Hamdan UCMJ to determine whether the right to be present may be properly derived from the Code. (26) The decisions of the district court, the court of appeals, and the Supreme Court offered drastically different opinions on this question, serving as the appropriate background upon which to examine this issue. This Subpart considers the reasoning in each of the opinions and concludes that the right to be present before courts-martial under the UCMJ does not guarantee a similar right in trials before military commissions.
The Hamdan litigation originated directly out of the war in Afghanistan. Salim Ahmed Hamdan was captured in Afghanistan during a time of armed conflict in 2001 and was subsequently transferred to the military base at Guantanamo Bay, Cuba. (27) In July 2003, the President designated him for trial by a military commission. (28) After Hamdan was officially charged, (29) his attorney filed multiple objections and motions with the military commission (30) and sought habeas relief in the Western District of Washington. (31) The case was subsequently transferred to the District Court for the District of Columbia pursuant to an earlier court ruling. (32)
In granting habeas relief, the district court relied on Article 36(a) of the UCMJ and concluded that the procedures of the military commission are contrary to the UCMJ, rendering the military commissions fatally flawed. (33) The principal criticism of the commission's procedures concerned "the power of the appointing authority or the presiding officer to exclude the accused from hearings and deny him access to evidence presented against him." (34) The district court found that the procedures in Military Order No. 1 authorizing the exclusion of the defendant from portions of the trial were at odds with the Confrontation Clause jurisprudence developed under the UCMJ. (35) Furthermore, although it acknowledged that such restrictions were presumably drafted to protect the disclosure of classified information, the district court noted that the Military Rules of Evidence already contain an effective system to deal with classified information. Relying on Military Rule of Evidence 505, the district court concluded that "the government has a choice to make... [if] the conflict between the government's need to protect classified information and the defendant's right to be present becomes irreconcilable," the government will have to determine whether to disclose the information in question or dismiss the charges. (36) Because it determined that the provision of Military Order No. 1 permitting the exclusion of the accused from his trial is "directly contrary to the UCMJ's right to be present," (37) the court held that Hamdan could not be tried by a military commission "until the rules for Military Commissions are amended so that they are consistent" with the UCMJ. (38)
The court of appeals, in reversing the district court, determined that the UCMJ did not govern the procedures used in trials before the military commissions. (39) It reasoned that the UCMJ was careful to distinguish between courts-martial and military commissions, noting specifically that Article 39(b) only requires the presence of the defendant in courts-martial, without mentioning military commissions. The court buttressed its textual reading of the UCMJ with reference to Madsen v. Kinsella, (40) in which the Supreme Court noted that neither the procedures nor jurisdiction of military commissions had been regulated by statute, (41) even though the UCMJ had been passed only two years earlier. (42)
The Supreme Court overturned the decision of the court of appeals and invalidated the military commissions established by the President. (43) It held that the commissions were authorized by neither the Authorization for the Use of Military Force (44) nor the Detainee Treatment Act, (45) and that they were not properly constituted under the uniformity requirement of UCMJ Article 36(b) because the Executive had not made a compelling showing of necessity. (46) The Court, however, provided that the President may return to Congress to seek authorization for the types of military commissions he envisions. (47) The Court also implicitly acknowledged that Congress itself could alter the UCMJ to allow for procedures similar or even identical to those found in Military Order No. 1. (48)
Accordingly, the two primary issues involved in Hamdan are the extent of the President's authority to establish military commissions and his power to determine the procedures governing such trials. (49) Article II of the Constitution entrusts the President with the nation's war-making authority as the Commander-in-Chief of the armed forces. (50) The President possesses a number of considerable and largely undefined powers under this provision, (51) the exercise of which often, although not always, presents an unreviewable political question. (52) Indeed, in matters concerning national security, the President is entitled to "heightened deference." (53) Despite the breadth of the Commander-in-Chief power, the Court insists that its exercise remain compatible with "the principles of our institutions," (54) because, as the Court recognized in a later case, "[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile." (55) Thus, while the powers of the President in wartime are broad, they are not unlimited; often the only check on these powers comes from the judiciary. (56)
The Supreme Court's opinion in Hamdan is such a check on the power of the President in a time of war. (57) Its conclusion regarding the legality of the military commission's procedures is unpersuasive (58) and troubling both in terms of its legal implications and its national security repercussions. Before delving into the substantive legal issues raised by the Court regarding the issue of a defendant's right to be present, it is necessary to note that the issue of presence during trial was not truly presented in Hamdan since the trial had not yet begun; Hamdan was only excluded from voir dire proceedings. (59) Justice Kennedy noted as much in his concurrence by stating that "[t]he evidentiary proceedings at Hamdan's trial have yet to commence, and it remains to be seen whether he will suffer any prejudicial exclusion." (60) With this procedural posture in mind, the remainder of this Part explores whether, prior to Congressional alteration, the UCMJ gave a defendant an unfettered right to be present during his trial before a military commission.
As an initial matter, the Court in Hamdan apparently merged the issue of the Executive's authority to establish the military commissions on the one hand and its discretion to craft the rules and procedures governing the commissions on the other. (61) Conflating these two distinct issues, the Court concluded that the commissions were invalid because there were improper, or at least unnecessary, procedural departures from the rules typically governing courts-martial. As Justice Alito rightly noted in his dissent, however,
[E]ven if it is assumed for the sake of argument that some of the procedures specified in Military Commission Order No. 1 impermissibly deviate from court-martial procedures, it does not follow that the military commissions created by that order are not 'regularly constituted' or that trying petitioner before such a commission would be inconsistent with the law of war. If Congress enacted a statute requiring the federal district courts to follow a procedure that is unconstitutional, the statute would be invalid, but the district courts would not. (62)
Accordingly, provisions that allow the defendant's exclusion surely cannot by itself render the commissions invalid. That said, the issue of whether presence is required must be addressed more fully.
1. The UCMJ and the Right to Be Present Prior to Congressional Alteration
The interpretive conflict displayed in Hamdan over whether a defendant must be present during his trial hinges primarily upon the meaning of the UCMJ, particularly whether its provisions governing courts-martial also apply to military commissions. An accused's right to be present during courts-martial is set out in UCMJ Article 39(b), which requires that all proceedings, except deliberations and voting on guilt or innocence, be conducted in the presence of the accused. (63) The procedures that governed the military commissions at issue in Hamdan, however, provided no such right. Although open public hearings are generally required in military commissions, under Military Order No. 1 the appointing authority or the presiding officer could close the proceedings to prevent disclosure of classified or classifiable information in order to safeguard participants in the proceedings, and to protect "other national security interests." (64) This authority encompassed "a decision to exclude the [a]ccused" and an order preventing defense counsel from disclosing "any information presented during a closed session to individuals excluded...." (65)
The UCMJ was promulgated by Congress acting under its constitutional authority "[t]o make rules for the government and regulation of the land and naval forces." (66) It covers various groups, including United States forces, "[p]ersons in custody of the armed forces serving a sentence imposed by a court-martial," (67) and "prisoners of war in custody of the armed forces." (68) Although the text of the UCMJ does not explicitly state that it applies to individuals to be tried before a military commission who are not POWs--unlawful enemy combatants--the language of Article 2(a)(10)-(11) (69) is sufficiently broad to assume that all persons coming before military commissions are subject to the relevant provisions of the UCMJ. (70)
Although suspected terrorists held at Guantanamo Bay may be covered by the UCMJ, what protections are afforded to them under the Code is not as clear. Indeed, that subject elicited much debate in Hamdan. The petitioner complained that the rules governing admission of evidence did not comply with the normal rules of either relevance or admissibility and that he and his civilian counsel could potentially be excluded from portions of his trial, preventing them from hearing certain classified information. (71) Only the issues surrounding the denial of presence will be addressed in this Article. (72)
Whether an unlawful combatant to be tried before a military commission possesses the right to be present during those proceedings turns on the meaning of Article 36 of the UCMJ. It provides that:
(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress. (73)
Every exercise in statutory interpretation must begin with the statute's text, and every word must be given effect, so as not to render any part of the statute inoperative, superfluous, void, or insignificant. (74) When Congress includes particular language in one section of a statute yet omits it in another section of the same statute, Congress presumptively acts "intentionally and purposely in the disparate inclusion or exclusion." (75) Courts interpreting the UCMJ have held to these same principles; they begin with the text of the UCMJ, (76) and generally regard the plain language and structure of the statute as expressing Congress's intent, absent clear evidence to the contrary. (77) Utilizing these same principles, this Article concludes that the procedures authorized by the President and issued by the Department of Defense were consistent with the text and purpose of the UCMJ. (78)
The most logical starting point for the present inquiry is UCMJ subsection 36(a), which deals directly with the promulgation of procedures for military commissions. Indeed, that subsection was the focal point of the petitioner's presence claim in Hamdan (79) and was a central issue considered by both the district court (80) and the court of appeals. (81) The Supreme Court, however, did not address the interpretative question under subsection (a), (82) but instead chose to focus on subsection (b). Therefore, the remainder of this Subpart will proceed in a somewhat reverse fashion, considering first the Supreme Court's holding under subsection (b) and then moving to a fuller consideration of subsection (a).
a. Impracticability Under Article 36, Subsection (b)
The Court determined that subsection (b) required a more substantial showing of impracticability than subsection (a) and that, under subsection (b), military commissions are subject to the rules governing courts-martial unless it is impracticable. (83) The Court then concluded that the President had not made the requisite showing of impracticability, stating that "[t]here is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility." (84) The Court likewise found the possible denial of the right to be present troubling, stating that "the jettisoning of so basic a right cannot lightly be excused as 'practicable,'" (85) but it did not make a definitive ruling on this particular issue.
As a matter of statutory interpretation, the Court's holding renders the President's discretion to make a determination of practicability provided by subsection (a) nonsensical, for if the showing of impracticability under subsection (b) is greater than that required under subsection (a), then there is no need in the statute for the discretionary grant of authority in subsection (a). The Court's reading of the statute contradicts the long standing canon of statutory construction that, where possible, courts are to avoid stripping a provision of its meaning or rendering it essentially obsolete. (86) Indeed, in the hearings that followed the Court's decision, it was asserted that no one in the military community read subsection (b) in this manner. (87)
To avoid this questionable interpretation of the UCMJ, the Court should have delved a bit further into the purpose of subsection (b). (88) The Court was right to note that Congress did not include subsection (b) in the UCMJ when it was originally proposed, but rather added it after World War II. (89) The Court, however, failed to explain the significance, if any, of this later addition. Instead, Justice Thomas accomplishes the task in his dissent, where he notes that "[t]he vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services." (90) He explained that "Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army." (91) The post-Hamdan hearings reveal that Justice Thomas's interpretation of the statute is indeed the proper one. (92) For example, Admiral James McPherson commented that, "[p]rior to Hamdan, we had always interpreted, assumed, that 'uniform' meant the rules were the same among the services, not that they were the same for the courts-martial, commission, tribunals, those provost courts." (93)
This interpretation of subsection (b) directly tracks the legislative history of the provision. If one looks at the legislative history on Article 36, it becomes clear that the drafters were concerned with uniformity between the branches of the armed services. (94) Congress meant for Article 36 to govern the drafting of the Manual for Courts-Martial; it was anticipated that "the services w[ould] sit down to write a manual as a joint effort" (95) and that the manual "would be used by all three services." (96) During the House hearings on the UCMJ, when discussing whether to require absolute uniformity across the branches of the armed services with regards to courts-martial, Robert Smart, the author of subsection (b), commented, "I doubt that you should tie [the branches of the armed services] with an amendment to where they could not even breathe." (97) He then offered an amendment to Article 36, which became subsection (b), and explained that it would leave "enough leeway to provide a different provision where it is absolutely necessary" and recognized that "there are some differences in the services." (98) He went on to note that "there might be some slight differences that would pertain as to the Navy in contrast to the Army, but at least [subsection (b)] is an expression of the congressional intent that we want it to be as uniform as possible." (99) Nowhere in the legislative history is there any indication that Congress intended for subsection (b) to rein in the President's discretion under subsection (a) to promulgate the rules and procedures for military commissions. At a later Senate hearing on the subject of the drafting of the UCMJ, participants observed sentiments similar to those of Smart, commenting that "[t]here will be the same law and the same procedure governing all personnel in the armed services." (100) The interpretation of subsection (b) evidenced in these hearings makes sense given the Court's precedent, which acknowledges that when Congress enacted the UCMJ, it was codifying the Articles of War, which preserved the President's authority to promulgate rules and procedures governing military commissions. (101) Absent explicit language to the contrary, Congress should not be presumed to have gutted that authority when it added subsection (b) to the UCMJ.
Moreover, nothing in the history of the UCMJ suggests that it ever intended to require uniformity of procedures between courts-martial and military commissions. (102) Looking at the text of the entire UCMJ makes it clear that Congress intended to create different courts with different procedures. The most obvious example is found in Article 16, which sets up different types of courts under the military justice system. (103) Later articles accord these various courts with different jurisdiction (104) and allow them to utilize different procedures. Given the flexibility normally afforded military commissions and the variances within the practice of courts-martial, (105) the suggestion that the procedures for the former must equate with those of the latter is erroneous. Indeed, "nothing in the structure, enactment record, or judicial history of Article 36(b) confirms the Court's holding." (106)
The other aspect of the Court's holding that raises some cause for concern is its determination that the President failed to make a sufficient showing of impracticability. Although this issue is beyond the scope of this Article, it deserves brief discussion given the central role it played in the dispute. It is the President, not the Court, that has been entrusted with the responsibility of safeguarding this nation's security. (107) History demonstrates the high degree of deference generally given to the Executive in the areas of war and foreign affairs. (108) This pattern of deference makes practical sense because, of the three branches, the Court is the least suited to decide what measures are and are not necessary to safeguard the nation. The Court has, at best, limited access to the vital security information upon which the Executive and, to a lesser extent, Congress rely on to make such important decisions. The Court's information deficit is illustrated most clearly by its own statement that "it is not evident to us why [the danger of international terrorism] should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial." (109) At a minimum, this portion of the decision should give one pause to consider the broader implications of the Court's intervention into such disputes.
Even assuming that the Court properly interpreted subsection (b), that alone does not foreclose future regulations permitting the exclusion of a defendant in a trial before a military commission. (110) The Court made clear that its ruling was entirely dependent on a showing of impracticability under subsection (b). (111) Thus, a more detailed showing of the need to depart from the procedures governing courts-martial would probably quell the Court's concerns. Moreover, because the Court noted that "the structural and procedural defects of Hamdan's commission extend far beyond rules preventing access to classified information," (112) any procedures designed solely to protect classified information would likely be subject to much less criticism than the court subjected the entire procedural framework to in Hamdan.
b. "Contrary to or Inconsistent with" Under Article 36, Subsection (a)
Although the Court left open the question whether the procedures governing Military Order No. 1 were "contrary to or inconsistent with" those governing courts-martial, (113) a fuller exploration of that question is appropriate. Through subsection (a), Congress delegated to the President the authority to promulgate rules of procedure and evidence for the military commissions, which the President lawfully delegated to the Secretary of Defense. (114) The UCMJ's predecessor, the Articles of War, granted a similar power to the President. (115) The powers delegated through subsection (a) and under the Articles of War were not seriously questioned before the Hamdan litigation.
Article 36(a) granted the President broad discretion to formulate the rules of procedure and evidence for trials before a military commission. (116) The legislative history demonstrates that there was much debate over whether and how much discretion should be granted. In the end, Congress gave the President almost unlimited discretion. (117) In drafting the UCMJ, Congress made clear that it was "not prescribing rules of procedure for military commissions" but only for courts-martial. (118) The only limitation extrinsic to the language of the Act itself is the will of Congress, and prior to the Hamdan litigation, Congress had not limited the power of the President to exclude a defendant from portions of the proceedings.
The only textual limit placed upon the President was contained in Article 36(a), which required that the procedures imposed may not be "contrary to or inconsistent with" the provisions of the UCMJ dealing with trial procedure. (119) One might be tempted to read Article 36(a) as imposing a limitation upon the extent to which the procedures in the UCMJ may be altered or restricted in trials before military commissions. (120) The district court in Hamdan took that position when it concluded that the UCMJ requires the defendant to be present in all proceedings except court deliberation. (121) Upon a closer review of the structure and language of the UCMJ, however, it is apparent that the rules governing courts-martial need not apply to military commissions. (122) Only nine provisions of the UCMJ specifically mention military commissions, and none of these provisions regulate the rights of or procedures due a defendant in such proceedings. (123) The scarcity with which military commissions are mentioned under the UCMJ stands in stark contrast to the lengths to which Congress went to prescribe specific regulations for courts-martial. The most pertinent example is Article 39(b), which provides that "[w]hen the members of a court-martial deliberate or vote, only the members may be present. All other proceedings ... shall be in the presence of the accused." (124) As the text indicates, this provision applies only to courts-martial. Even those critical of the procedures governing military commissions note that if they adhere to this interpretation, the procedures in question "do not contravene the specific treatments of military commissions" in the UCMJ. (125)
The strongest argument for the proposition that the rules for military commissions should be similar to the rules for courts-martial is found in the concept of inconsistency found in Article 36(a), which provides that the rules and regulations promulgated by the President may not be "inconsistent with this chapter," and this language should be interpreted in light of Article 39 and the Preamble to the Manual for Courts-Martial. The notion here is that, though procedures prescribed by the President are not necessarily "contrary to" the UCMJ, they must nonetheless be consistent with its overall structure. This argument looks more at the general pattern of how proceedings are conducted and less at the technical details and the article-by-article regulation of military commissions. The concept of presence under Article 39(b) forms part of that structure; therefore, a rule allowing the denial of this right in military commission proceedings would be "inconsistent with" that framework.
Although this argument has some surface appeal, it is less than compelling upon further consideration. The phrase "inconsistent with" is not defined in the UCMJ, and it is not clear precisely what the drafters meant by the term. What is clear from the text and the legislative history, however, is that the drafters intended to give as much discretion to the President as possible in formulating the procedures to govern military commissions. This impulse to confer the maximum amount of discretion is evident not only from the text of Article 36(a), but also from the Preamble to the Manual for Courts-Martial, which provides that "[s]ubject to any applicable rule of international law or to any regulations prescribed by the President or by other competent authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial." (126) Thus, as the text makes clear, the President is free to alter the rules and procedures applicable to military commissions at his discretion. (127) Had the drafters of the original UCMJ sought to limit that discretion or to provide specifically for the right to be present during military commission procedures, they certainly would have said so. (128) The weight of the evidence, however, leads to the opposite conclusion.
Excusing the procedures of military commissions from the requirement of UCMJ Article 39(b) comports with the general history and purpose of military commissions. Although not always labeled as such, (129) military commissions have always been recognized as part of the common law of war. (130) Their use and creation is rooted not only in the Commander-in-Chief Clause of the U.S. Constitution, (131) but also implicitly in the UCMJ, (132) and their existence has been confirmed and validated repeatedly by the Supreme Court. (133) Military commissions were created largely in response to military necessity, (134) and they have been "adapted in each instance to the need that called [them] forth." (135) The flexibility of military commissions in times of armed conflict has historically allowed them to depart from normal trial procedures in an effort to dispense swift justice. (136)
There is no doubt that the rules governing courts-martial "vary somewhat from the rules generally recognized in the trial of criminal cases in the United States district courts." (137) One of the most obvious distinctions is that rules of evidence are more lenient in courts-martial. (138) Furthermore, the full panoply of rights guaranteed by the Constitution does not apply in courts-martial. (139) The right to a jury trial, for example, is guaranteed in every felony criminal case in civilian court, (140) but is denied in courts-martial. (141) Other differences include: the right to compulsory process, (142) the standards of due process, (143) and the prohibition against ex post facto laws. (144) Similarly, when compared to the civilian judicial system, military commissions offer a number of advantages, (145) including more flexibility in addressing the national security interests that arise in these sorts of trials. (146)
More important than the differences between the military commissions and courts-martial on one hand and civilian trials on the other, is whether it is permissible for the procedures utilized by military commissions to differ from the procedures used in courts-martial. Although courts have not pronounced on this distinction, aside from lower courts in Hamdan, (147) it is generally recognized that one of the particular advantages of military commissions over courts-martial is their ability to apply more flexible procedures. Indeed, it has long been recognized that military commissions "will not be rendered illegal by the omission of details required upon by trials by courts-martial." (148) Even one of the amici in Hamdan who argued in support of the petitioner recognized that "[a] military commission is a wartime military trial with less stringent rules of procedure and rules of evidence than found in courts-martial." (149) To conclude otherwise would seem curious given the text of the UCMJ and the discretion it originally afforded the President to craft military commission procedures. (150)
Rather than present historical evidence requiring a defendant's presence before military commissions, the district court in Hamdan opined that military courts-martial provide an adequate method to protect the national security concerns voiced by the government. (151) It determined that Military Rule of Evidence 505 would adequately safeguard classified material. (152) This rule is based entirely upon the Classified Information Procedures Act (CIPA), which is discussed in detail below. (153) Both CIPA and the Military Rules of Evidence were enacted the same year. (154) The court assumed without proof that not only is Rule 505 adequate in theory, but also that its implementation, or that of its predecessor, has been successful in protecting classified information. (155) Although Rule 505 inevitably will help protect some classified information, its use by military commissions would place the government in a disclose-or-dismiss dilemma similar to what already plagues CIPA cases. (156) Requiring military commissions to utilize this provision of the Military Rules of Evidence would disadvantage the government more than allowing the flexibility traditionally afforded military commissions. (157) Such a requirement should be rejected. (158)
Even assuming, however, that Rule 505 could adequately protect national security interests, such a conclusion is wholly irrelevant because the Military Rules of Evidence by their terms are only "applicable in courts-martial, including summary courts-martial, to the extent and with the exceptions stated in Military Rule of Evidence 1101." (159) They are not intended to apply to military commission proceedings, (160) once again confirming the distinction between congressional regulation of courts-martial and the flexibility given to the President in promulgating rules of procedure and evidence for military commissions.
Early in the twentieth century, it was understood that the "safeguards of the Bill of Rights of the Constitution are for the time being set aside" when military commissions were employed. (161) Today, the precise scope and application of the Bill of Rights in proceedings before a military commission is almost entirely unknown. It is known, however, that the full protections afforded by the Sixth Amendment are not recognized by courts-martial. Jury trials are not required, (162) and the right of confrontation, to which the district court alluded in Hamdan, is more limited in courts-martial than in federal criminal trials. (163) Perhaps most importantly, the option to exclude the defendant from portions of trial has been contemplated for military commissions. The most notable example is Article 12 of the Nuremberg Charter, which provided that:
The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. (164)
When this provision is considered alongside the historical reality that a military commission is "adapted in each instance to the need that called it forth" (165) and the extraordinary deference usually granted to the Executive in decisions related to national security, (166) it is not unreasonable to believe that the right of confrontation and presence properly may be limited in trials before military commissions.
2. The Geneva Convention and the Right to Be Present
A secondary question that also occupies much of the Court's decision in Hamdan is the extent to which international law and more precisely the Geneva Conventions limit the procedures that military commissions can employ. (167) The discussion of the Geneva Conventions in Hamdan is somewhat complex, much of it extending beyond the scope of this Article's inquiry. However, to properly frame this Subpart, a brief overview of this question is necessary.
Common Article 3 of the Geneva Conventions provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons taking no active part in the hostilities," which includes "members of the armed forces who have laid down their arms" and those held in "detention." (168) The Convention requires covered persons be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (169)
Hamdan alleged that he was protected by Common Article 3 of the Geneva Conventions, at least until a competent tribunal determined whether he was a POW. (170) He further alleged that the protections of the Conventions are directly enforceable by a private individual (171) and complained that the procedures of the military commission violate Common Article 3. (172) The government countered that Hamdan was not covered by the Geneva Conventions, (173) that a private citizen may not enforce its provisions in federal court, (174) and that, regardless, the court should abstain from ruling on this issue. (175)
The district court held that until Hamdan's status was determined by a competent tribunal he must be afforded the protections of the Geneva Conventions (176) and that it was appropriate for the court to abstain on the question of whether the procedures of the military commission violated Common Article 3. (177) The court of appeals, in contrast, held that the Geneva Conventions are not enforceable in a private cause of action, (178) that Hamdan was not entitled to their protection even if they were judicially enforceable, (179) and that, in any event, abstention was appropriate. (180)
The Supreme Court avoided the question of direct enforceability by private parties of individual rights conferred by the Geneva Conventions. (181) Instead, it held that whatever might be said about the rights conferred on Hamdan, the Conventions are part of the law of war, and thus compliance with them is a precondition for the establishment of military commissions under the UCMJ. (182) The Court went on to conclude that, at a minimum, the protections of Common Article 3 were applicable to Hamdan because he was involved in a conflict "not of an international character." (183) Then, the Court proceeded to examine language of Common Article 3. It found that the court-martial was the "regularly constituted court" in the system of military justice (184) and that a military commission could be considered regularly constituted "only if some practical need explains the deviations from court-martial practice." (185) The Court also found the question of whether the commissions were regularly constituted to be "intertwined" with the issue of whether the procedures of the commission "afford 'all the judicial guarantees which are recognized as indispensable by civilized peoples'" under the Convention. (186) Although the Court noted that this latter phrase is not defined by the Convention, it found that the phrase "must be understood to incorporate at least the barest of those trial [protections] that have been recognized by customary international law," (187) which includes the [protections] listed in Article 75 of [] Protocol I to the Geneva Conventions. (188) Among these rights is the right to be present during criminal proceedings. Here again, the Court noted that this right is subject to a "practical need" exception. (189)
The only portion of the Court's Hamdan opinion directly relevant to this Article is its discussion of whether customary international law includes the right to be present. The merits of this question are far from clear. Although Protocol I provides for the right to be present, (190) the United States has not ratified this Protocol. Moreover, it is questionable whether this provision forms part of customary international law (191) and whether the United State qualifies as a persistent objector. (192) The most obvious signal is the United States' refusal to accede to the Protocol. (193) And although the Court opines that the United States does not contest Article 75, (194) if the United States did not contest this Article, it could have made that clear by ratifying the Protocol and attaching reservations to the ratification concerning the objectionable parts of the Protocol.
Additionally, the opinion of the Court does not prove that the right to be present is considered "indispensable by civilized peoples." (195) The assumption underlying the Court's rationale is that "judicial guarantees which are recognized as indespensable by civilized peoples" include, at a minimum, customary international law. (196) Had the drafters of the Convention intended such a result they could just as easily have provided that persons are to be afforded those guarantees recognized as part of customary international law. More importantly, the Court did not analyze what "civilized peoples" might actually consider "indispensable." The Court could have, for example, looked to the practice of European or common law nations and ascertained whether an accused in like circumstances might be excluded from portions of his trial in order to safeguard classified or national security information. (197) This type of comparative legal analysis would have been far more persuasive than the conclusory and unsupported statement that the right to be present is part of customary international law. (198)
Finally, the Court fails to consider the effect of the...
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