In addition to the always outstanding analysis provided by Bobby Chesney and John Bellinger on the Obama administration’s new executive order on GTMO detention review, and the accompanying “Fact Sheet“, there is another fascinating feature that merits discussion.
Here’s the question: by recognizing Article 75 of Additional Protocol I of the Geneva Convention (API) as customary international law, which includes in §4(g) the “right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf,” has the administration inadvertently (or intentionally) invoked the Confrontation Clause of the Sixth Amendment, thereby potentially gutting the relaxed rules on the admission of hearsay available to both sides in military commissions?
Here is why I ask the question, and why I believe that this will result in substantial pretrial, trial, and appellate litigation.
Included at the end of the “Fact Sheet”, as loyal readers know and as Bobby pointed out, is a statement that the United States will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 [of Additional Protocol I, governing international armed conflict] as applicable to any individual it detains in an international armed conflict…”
The arguments why the United States should accept Article 75 of API as customary international law are covered in a post by John Bellinger on this blog, but are not germane to my question.
Recall that the United States Department of Defense already included many key aspects of Article 75 of API in its overarching detainee policy directive, DOD Instruction 2310.01E, linked here: http://1.usa.gov/h3cZYP
That directive, which was published in 2006 when I was Deputy Assistant Secretary of Defense for Detainee Affairs, and my brilliant predecessor Matt Waxman was over at Policy Planning at State, was and still is the cornerstone of U.S. military detention policy. Enclosure 4 of that directive contains most, but not all language from Article 75 of API, on purpose. In other words, it is the policy, at least of DOD, to comply with Article 75, or at least most of it. The Directive was issued after the Hamdan decision was handed down.
Recall also that in Hamdan v. Rumsfeld, the Court held that Common Article 3 of the Geneva Conventions applied to Hamdan, and that the conflict with al Qaeda was not of an international character.
Finally, Article 36 of the UCMJ states that the President may proscribe rules for “cases arising under this chapter triable by courts-martial, military commissions and other military tribunals…so far as he considers practicable…but which may not be contrary to or inconsistent with this chapter.” The rules and regulations, according to section (b) of UCMJ Article 36 “shall be uniform insofar as practicable.”
Thus, given the arc of litigation in commissions cases to date, and the various theories advanced so far, we will likely see substantial litigation over whether the President’s announcement regarding Article 75(4)(g) of API is a principle of law under UCMJ Article 36 and that detainees should enjoy the right to obtain the attendance of and confront the witnesses against him. The government has, to date, argued that the confrontation does not apply to commissions. Opponents will point to the international armed conflict v. non-international armed conflict application.
How this will turn out is anyone’s guess, but it could result in the gutting of the relaxed hearsay rules that are endemic to commissions.
First posted at Lawfare.