This is a point David Kris made in Congressional testimony last year–there are actually charges you can’t use in a military commission but which you can use in a civilian court (though the Obama Administration appears prepared to press the limits of MCs anyway).

I both really agree, and kinda disagree, with this. What Kris – and Congress for that matter – haven’t really focused on is the difference between a military commission and military court martial.

My effort here is going to be oversimplified and people like Frakt and Swift (and Stevens) can run rings around me on this, but here’s an effort to highlight the distinction and maybe it will give a glimpse to what I see as the really horrible horrible problems with the MCs that Obama and Congress are just ignoring.

The Uniform Code of Military Justice provides a mechanism for trying actual soldiers (of either side) who have gone too far under the military’s version of too far. Sometime that might be less far than any of us might buy (for example, the pilot who helped out during Katrina and was doing what most of us would admire and support could have been subject to some kind of military disciplinary proceeding) and sometimes it goes much further than a point that would make most of us blanche (for example, solidiers have the privilege to kill and maim and displace – civilians as well as other soldiers, and to engage in vengeful retaliation as long as it is “proportionate” etc.)

Those are well recognized tribunals and mechanisms and their goal is to pretty much let fighters engage in killing without “too” many concerns, as can be seen from the outcome of the court martial proceedings involving Haditha and Dilawar etc.

Now, you have another situation – other than where warrior/soldiers are involved in a war with each other – where military rule is imposed (ok, you have several, including rules of occupation, but for purposes of this discussion – lets go with the the one other biggie at issue here).

When you have a situation where the military is in control of an area, but it is wild and wooly and order needs to be imposed, but you are dealing with a lot of non-military people and a situation where normal mechanisms (like courts, police, etc.) are not available, there developed a tradition (strongly presumed against in our English common law adoption and cases that followed) that in such a setting of battle, without access to civilian justice mechanisms and often in situations where there was no civilian law per se that would be applicable (for example, if an invading force had taken control of a city and displaced persons stormed and began looting a formerly govt building – but a building that was of a toppled govt – you might not have a set of clear cut laws as to who is entitled to what) but you might have a strong military need or desire to establish order.

Hence, the military commissions. They don’t derive from law – or at least, they never have in the past. They derived from necessity in a theatre of war. They have always been viewed, not as a means and mechanism to justice or truth, and not as something done in accordance with law (civilian or military) but rather as a convening of power, by necessity, to impose order where CIVILIAN MECHANISMS WERE NOT AVAILABLE. So in the govt building example I gave, the military power in the area could call for a commission and, without any real legal basis – no UCMJ violation and no civilian law that would be applicable – impose rules and punishments.

All, supposedly, only until civilian mechanisms were back in place.

That’s what is so disastrous about the whole of the Military Commissions Act. It turns all of that on its head.

From my overused reference, Milligan:

The source and origin of the power to establish military commissions, if it exist at all, is in the assumed power to declare what is called martial law. I say what is called martial law, for strictly there is no such thing as martial law; it is martial rule; that is to say, the will of the commanding officer, and nothing more, nothing less. …
Let us call the thing by its right name; it is not martial law, but martial rule. And when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander, and we shall give a true idea of the thing, and be able to reason about it with a clear sense of what we are doing.
…
Private persons may lawfully tear down a house, if necessary, to prevent the spread of a fire. Indeed, the maxim is not confined in its application to the calamities of war and conflagration. A mutiny, breaking out in a garrison, may make necessary for its suppression, and therefore justify, acts which would otherwise be unjustifiable. In all these cases, however, the person acting under the pressure of necessity, real or supposed, acts at his peril. The correctness of his conclusion must be judged by courts and juries, [71 U.S. 2, 37] whenever the acts and the alleged necessity are drawn in question.

The creation of a commission or board to decide or advise upon the subject gives no increased sanction to the act. As necessity compels, so that necessity alone can justify it. The decision or advice of any number of persons, whether designated as a military commission, or board of officers, or council of war, or as a committee, proves nothing but greater deliberation; it does not make legal what would otherwise be illegal

A military commission is a far far thing from a military court martial under the UCMJ, or at least it was. Our English jurisprudence was so against the concept that, even when there was a huge uprising(Earls of Lancaster and Hereford) against Edward II, and Edward called up his army and went and successfully fought back the uprising right outside his city, when the captured Lancaster was brought before a hasty military proceeding and executed on the battlefield, his heir was later able to challenge that attainder with Parilament finding that Edward II had acted without regard to law and:

‘1. That in time of peace no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer. 2. That regularly when the king’s courts are open it is a time of peace in judgment of law; and 3. That no man ought to be sentenced to death, by the record of the king, without his legal trial per pares.

That’s a pretty strong tradition against military proceedings against non-military persons when the courts are open and operating.

In any event, what the MCA has done is to say that Congress wants to allow – not battlefield commissions of necessity – but instead to cirumvent civilian courts that everyone acknowledges are open and operating (and which are even exercising habeas jurisdiction at this very point in time) by setting up a commissions systems of made up charges (like providing material support) bc there CAN be made up charges under commissions – that’s a part of their raison d’etre. But there can’t be commissions – under what has always been US law – without a battlefield necessity.

This goes back to some of the very fist GWOT memos, for that matter, IIRC. This is why Philbin (I think) was originally tasked with writing up an OLC opinion authorizing the trials and executions – in Afghanistan (as a failed state with no recognized by us civilian institutions at hand) of al-Qaeda members captured – by military commission.

He took a long and convoluted approach to getting to the thumbs up (back then, none of them were as inured to overriding law and engaging in torture solicitation as they became) and in part expressly premised his finding as to military commission on the fact that the Geneva Conventions would – of course – apply.

And this is how far we’ve come since then – since right after 9/11 when you would have expected us to be at our worst in what we would allow. Instead, years later and after clear showings of horrific abuse like Abu Ghraib and contemporaenous with torture being used to rig up a grounds for yet another war front, etc. – after all of that, Congress has tried to subjugate, by the MCA, the rule of law to the the whim of whatever a military tyrant might decide.

They have said that military necessity for a commission while courts are inoperative is one and the same as rigging up facades of trials based on charges that we’d never allow to be made against Lockheed execs or Dick Cheney, and with the “necessity” being …? The Executive whim.

That’s really horrible and the thought that the courts, without a Stevens, might belly roll for it all, is equally horrible.

Most horrible is that the Changling gets accolades and Peace Prizes while exploiting such a horrible situation.

But in the end, I’d disagree with Kris. Standard military proceedings don’t allow for the kinds of charges that would need to be brought against many of those who actually are terrorists (much less the ones like the Chinese Uighur who we drove to insanity for no decency based reason) BUT – he’s wrong to say military commissions don’t.

The lower courts have been struggling bc they are charged with trying to make the Congressional legislation – making it a “military commission crime” to materially aid or support terrrorists (all without much in the way of definition). But with their struggles, they have tried to focus on the combatant status of the detainees and what can be reasonable held to be a combatant, so as to justify continued detention – all without ever really getting to the issue of how commissions can proceed on charges of matieral support when there is no battlefield necessity.

I’ve probably butchered that beyond recognition, but fwiw.