A conversation with the chief prosecutor of United States military commissions.

• Author: Martins, Mark

Thank you, Dean Mitchell for that warm and gracious welcome and introduction.

It is so tremendous to be here in this distinguished institute and law school and in the tradition of international legal studies. Michael, Avi, great to see you again--Avi, in your former work in Human Rights First and our work together on the Counterinsurgency Manual, the Army, and Marine Corps Manual for Counterinsurgency; and, of course, Michael, who I hadn't seen for twenty years.

It is hard to believe that twenty years ago we were trying to think through how an International Criminal Court might deal with shadow groups of various levels of allegiance in connection to a government, might be tried for violations of international law, and your scholarship has meant so much to us in the field and in court rooms around the world. So it is just tremendous to see you again and to be here.

You know, coming to this distinguished institute of higher learning, having spent most of the last decade in rural parts of Iraq and Afghanistan, I am kind of reminded of maybe the most famous occasion in which a backwoodsman came to the academy.

You will remember it too, from our history. It was Abraham Lincoln in 1858, and he is debating Steven A. Douglas in the senatorial campaign in Illinois, and one of the Lincoln-Douglas debates occurs at Knox College in Western Illinois. Then, as now, it is a preeminent private liberal arts college.

Lincoln, of course, who is a self-schooled person, no higher education of any sort, comes to Knox. Historians say it was a pivotal moment in the lead-up of the Civil War, the whole course of peace and then war might have been different had Lincoln not denounced slavery on moral terms that day.

So Knox, as the legend of the debate goes, Knox had set up scaffolding. If you had been out to Knox, there is an old main building, and they wanted everyone who was coming--it is a railroad junction town, so people were coming from all over the Midwest to Knox--they gathered out in front of the old main building, and they had set up scaffolding on the second floor so the candidates could be heard and seen.

So Steven A. Douglas, a compact man, gets through the window out onto this scaffolding, no problem. Lincoln, of course, a tall, gangly man who was to become our sixteenth President in just a couple of years, kind of gets through the window with difficulty out onto this makeshift stage and is said to have quipped, "at least now I will be able to say that I have been through college."

I won't be able to say I have been through the great Case Western Reserve University School of Law after this, but I am indebted to you for allowing me to share it with you this afternoon. It is also great to be in Ohio.

My first platoon sergeant was from Ohio, a very grounded, wonderful non-commissioned officer, repetitive tours in Vietnam. I was a green infantry lieutenant, and we were out on our first field problem in Fort Irwin, California, in the high desert, and we had trained hard all day with my platoon, and went to bed out near our foxhole.

The Sergeant elbows me at about two o'clock in the morning and he says, "Sir, look up, and tell me what you see." And I looked up, and I said, "Well, I see a heaven full of stars Platoon Sergeant."

He says, "Sir, what does that tell you?" And I didn't really know where he was going with this question. But I wanted to impress him with my profound keen intellect. So I said, "Well, astronomically, that tells me there are billions of stars, perhaps trillions of planets. Theologically, it tells me that God is great, and we are but small and insignificant. Meteorologically, it tells me it is a clear night; should be a clear day tomorrow, great day for training."

I said, "Well, what does that tell you, Platoon Sergeant?" And you know, I thought I really impressed him with this. He was pausing. He says, "Sir, it tells me that somebody stole our tent."

That was the last time I was consciously trying to be profound.

And I won't try to be profound today, even though we are dealing with some profound issues, some serious and profound issues. I want to talk to you for the next twenty to twenty-five minutes about the reformed military commission system under the Military Commissions Act of 2009. (1)

This is a system that the Dean's introduction indicates in almost every phrase and word the connection of this system in people's minds, to images formed of Guantanamo a decade ago. And yet, the world's view of this system and of Guantanamo is not merely a function of just images. There were serious legal errors in the framework with which we started out a decade ago.

In 2004, the Supreme Court held that detainees held under the law of armed conflict must have a meaningful opportunity to confront the basis under which they are detained. (2)

In 2006, the Court held that if we are to try somebody under the law of armed conflict, we must comply with common Article 3 of the Geneva Conventions, (3) and then in 2008, the Court granted the great writ, the writ of habeas corpus, access to our federal courts, to detainees, (4) those cases of Hamdi v. Rumsfeld in 2004, Hamdan v. Rumsfeld in 2006, and then the Boumediene v. Bush case in 2008.

Where we are now, I will submit to you and I am grateful to have the opportunity to answer whatever questions you have, tough questions in an academic setting, where I know that you are thinking about these things carefully. It is not going to be just about slogans.

I want to talk to you about these issues because where we are now is at a mature and accountable institution; that five different acts of Congress, and I am talking about the two different Military Commissions Acts of '06 and '09, and then successive national defense authorization acts, two different presidents coming at it from different perspectives, and now, increasingly, our courts have weighed in on.

This is the only lawful path forward for reasons I am going to mention for trials of some of the most serious alleged members of Al-Qaeda and associated forces. So, military commissions.

Let me say four things up front, given the international perspective of many of you and being part of the great Cox Center, and I will put this in sort of an international context.

First of all, it is really important, I think, to distinguish between detention under the law of armed conflict and a criminal trial under the law of armed conflict. So detention under the law of armed conflict is the taking of a combatant off the battlefield, a regular combatant, somebody wearing a uniform or somebody not. (5)

You have that authority. States have that authority until the end of the conflict. Not a controversial source of authority under international humanitarian law under the law of armed conflict. That's one topic, and that tends to be associated with Guantanamo detentions in Afghanistan and Iraq that are occurring in the context of hostilities.

Then you have the trial of alleged violators of international law, of the law of armed conflict; criminal trials. So if you don't make that distinction, I find people on all sides of these different issues if you imagine four quadrants. You can be for the system of detention that is right now supervised by our federal courts: you have habeas with regard to Guantanamo detainees and you have the habeas petitions in the United States District Court for the District of Columbia, federal court, providing independent review of the lawfulness of detention.

So you might be for that system, say, and against military criminal trials. You might be for the high standard of proof, the rigor that I will talk about with regard to a criminal trial, putting somebody on notice of charges and trying them in a criminal trial in a military commission, and against the longer term detention that can happen even under federal court supervision. So you can be for one, against the other. You could be for both or against both.

I have found that you see people all around the world in every one of the quadrants. So it is important so as not to make any analytical errors and first level errors to see that distinction.

Having spent a good deal of time in the law of armed conflict detention effort around the world in Afghanistan and Iraq, I am now clearly working in this area of criminal trials. So what I am talking about today is military commissions, which is distinctly the criminal trials aspect that must be, I think, disentangled. So that's the first observation.

The second is, since 2006, we have very clearly been within Common Article 3 of the Geneva Conventions. The court held, as I said, that you must comply with that. What was that rule? That if you are going to try an individual under the law of armed conflict, you must provide a regularly constituted court affording all of the judicial guarantees recognized as indispensable by civilized peoples. (6) So we are clearly...