So is it correct to say that military commissions are meant to address violations of the laws of war, those and nothing else? That basic distinction just never occurred to me all this time (but then I’m slow). So apart from the many detainees we suspect are entirely innocent, those apprehended on the battlefield are basically POWs and really shouldn’t be appearing before commissions? Or how do we think of their situation?

The answer to your first question is yes, skdadl. With the caveat, as the recent threads on this have hopefully made clear, that the “military commissions” forum (that first Bush and then Congress created for non-citizens alone) is a poor and unjust substitute concocted to replace our regular military justice system and its special law-of-war courts-martial that were already designed, tested, and ready and waiting to prosecute violations of the law of war committed by both citizens and non-citizens. [Part of the injustice of the military commissions is their charging of non-war crimes (crimes not recognized as violations of the law of war) as war crimes (such as, arguably, “material support to terrorism”), as Lt. Col. Frakt pointed out in his Congressional testimony.]

As for your other questions, the U.S. military has basically written “POW” status out of the law of armed conflict for its captured (Muslim) opponents in Afghanistan, both before and after the Taliban government fell (meaning regardless of whether this conflict qualifes as an “international” armed conflict or as a “non-international” armed conflict). Some of the methods the military used to effect that denial of POW status were “Administrative Review Boards” and “Combatant Status Review Tribunals” (CSRTs) – since discredited by the Supreme Court – which were claimed to be (but were not) Geneva Convention Article 5-compliant “competent tribunals” (designed to ascertain the proper armed conflict law status of captured foreign fighters).

The beginning of their detention – obviously as close to the battlefield as possible for freshest evidence – is when the “competent tribunal” is supposed to fairly assess the enemy prisoner’s role and status in the conflict. Yet practically every single detainee still in Guantanamo was denied such a fair assessment of his (alleged) role in our armed conflict in Afghanistan. And none of them were granted formal POW status or privileges. [Instead the U.S. concocted an “unlawful enemy combatant” category that we claimed didn’t even require Common Article 3 minimum standards of humane treatment – another decision since, if belatedly, overruled by the Supreme Court.] As a result, we see, thanks to last year’s Boumediene decision, the habeas corpus appeals by those detainees finally reaching federal district court merits hearings, so that they at long last get a fair hearing about why they were detained (as either alleged war criminals, or simply captured foreign fighters), and why they claim they shouldn’t have been.

German NAZI prisoners held in POW camps in the U.S. didn’t need to flood our courts with habeas corpus appeals because they – as our military correctly and fairly determined when they were captured – really were POWs, and were humanely treated in accordance with that status, and thus were – as they knew – legal (not to mention relieved) detainees until the end of the war. And, of course, those enemy prisoners from the German Armed Forces could not be prosecuted for “war crimes” – in either courts-martial, or battlefield-exigent military tribunals – unless their individual conduct explicitly violated the law of war. And, yes, the same standard should apply to anyone at Guantanamo who was fighting against us abroad in observance of the law of armed conflict.

Hi. Lt Col Frakt here (I should note that my views don’t represent the views of the Air Force or Department of Defense – I’m actually responding in my capacity as a law professor, not as a Reserve JAG).

Violations of the laws of war by enemy prisoners of war must be tried in military courts-martial, under the identical rules and procedures we use for our servicemembers. The idea of a military commission was to try persons that President Bush determined were not entitled to POW status whom he termed “unlawful enemy combatants.” Military commissions have traditionally been used to prosecute violations of the laws of war. However, President Bush asked for, and Congress provided, the authority to try “unlawful enemy combatants” for additional offenses not previously known as war crimes, namely terrorism, material support and conspiracy. Congress simply declared in the 2006 MCA that all of the crimes listed in the MCA were crimes traditionally triable by military commissions, even though this was untrue.

President Obama has repeatedly made the distinction that violations of the laws of war may be appropriatedly tried in military commissions. This is a true statement, although military commissions have traditionally been utilized when civilian courts are unavailable, a situation that we do not currently face. That being said, I would not object to military commissions using fair rules and procedures being used for actual war crimes. The reality is that few, if any, of the detainees have actually violated the law of war. The Bush Administration had a theory that any act of fighting by a “unlawful enemy combatant” violated the laws of war, but this theory was repeatedly rejected by the judges in the military commissions themselves.

What the [Supreme] Court has held is that the Fifth Amendment and Due Process generally requires that any statements used against an individual be acquired voluntarily. While in the police/law enforcement interrogation context, an unwarned statement is presumptively involuntary, this is not so in the detainee interrogation context. Before Miranda, there was a voluntariness standard that the Supreme Court applied. Basically, statements that were not “coerced” were deemed to be voluntary. So the key question in considering the admissibility of detainee statements is whether they were coerced. The administration of some kind of warning to a suspect is a factor in whether a statement is voluntary, but is not dispositive.

Excellent clarification, thank you. Which I think basically squares with ondelette’s answer at 83.

In thinking about Article 31’s applicability, I’m thinking of what could have been with (any legitimate war criminal suspects among) the Guantanamo-detained prisoners, rather than what is. That is, if, instead of resorting to the Bush/Guantanamo Military Commmissions, we had decided to prosecute in our regular military courts any suspected war criminals among the number of our legitimate armed conflict detainees, I wanted to clarify how UCMJ Article 31 rights would apply and complicate (or not) prosecutions of non-citizen suspects. Partly in an attempt to knock down the misleading talking points of people who ought to know better, like self-appointed JAG spokesman Senator Lindsey Graham, who imply or flatly state that honoring the right not to have coerced statements used against one in court somehow precludes effective prosecution in a law-of-war court-martial (or federal court), or impedes in some way battlefield operations.

As it is, it seems obvious that any statement that we obtained post-capture from the 9/11 Five (among others in Guantanamo) can not possibly qualify as uncoerced, regardless of whether any warning, or no warning, of the right to remain silent was ever given. Thus, no doubt, the careful caveats about “voluntariness” that leave room for the admission of coerced statements in 2009’s revised Military Commissions Act [starting on PDF Page 385 of 655].

To wit:

-‘Sec. 948r [of the revised USCode Title 10, Chapter 47A, Subchapter III]. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused

‘(a) Exclusion of Statements Obtain[ed] by Torture or Cruel, Inhuman, or Degrading Treatment– No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made. [This flat exclusion is an improvement over earlier versions of the bill.]

‘(b) Self-incrimination Prohibited– No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter.

‘(c)Other Statements of the Accused– A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds—

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

‘(2) that–

‘(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or

‘(B) the statement was voluntarily given.

‘(d) Determination of Voluntariness– In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following:

‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.

‘(2) The characteristics of the accused, such as military training, age, and education level.

‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

I wonder, would prohibition in these circumstances also extend to expectations about a higher likelihood of conviction or more appropriate sentence based on factors other than those you mention?

I don’t think so, although other considerations are probably paramount (nature of the offense, and applicable penalties under domestic law vs. armed conflict law – which I guess actually encompasses your “more appropriate sentence” circumstance). As for the rest, I think it can be chalked up to normal “prosecutorial discretion” as it’s generally understood.

But, first, the overriding consideration during an actual armed conflict, when we want to try an enemy POW as a war criminal, is that we use the same courts and the same procedures that we use to try US servicemembers, as the EJP report (in Chapter 3) explains clearly here:

Had the US accorded prisoner of war status to fighters captured in Afghanistan in 2002 and charged them with pre-capture offences, they would (in accordance with Article 102 of the Third Geneva Convention) have been tried before the same courts, and according to the same procedures, as US military personnel.123 Thus, detainees would have been tried by civilian courts or courts martial operating under the United States Uniform Code of Military Justice. Moreover, the US authorities could not have subjected detainees to punishments, or to more severe sentences, than those applicable to their own military personnel.124

Since most US servicemembers committing offenses in the line of duty (or at least, like Hasan, while on active duty) are likely to be charged under the UCMJ, including, potentially, by court-martial, it seems that the default forum for trying enemy POWs is probably the same UCMJ military justice system, even if, as with the 9/11 attacks, there could be an argument made that using the regularly-constituted federal civilian courts is an unprejudiced, available option.