8/22 Motions Session #9: Define and Punish

The MCA violates the Constitution’s Define and Punish Clause, says J. Connell.  That’s the gist of AE104, which he presents now to the military judge, having in mind Congress’s constitutional power to define and punish offenses against the “laws of nations.”  This challenge, Connell says, has a bit in common with AE106, regarding unlawful discrimination.

The lawyer finds the rights/restraints distinction blurry---certainly blurrier than Judge Pohl, gauging by the latter’s questions---but Connell thinks nevertheless that the Define and Punish Clause acts a structural restraint.  That’s the import of the “law of nations” phrase, to him.  Of course that phrase has been batted around a good bit lately, by military and civilian courts.  Thus the court asks about the CMCR and D.C. Circuit cases in Al-Bahlul. What to make of these?  Connell acknowledges that en banc proceedings in the D.C. Circuit could affect his position here, given the United States’ newly-trotted-out-though-dubious “domestic common law of war” claims regarding the propriety of certain commission offenses.  (Of course Connell doesn’t go so far as to concede defeat, should those claims win the day; the court, at any rate, makes clear its intention to decide based on current law, and not to wait for the D.C. Circuit’s input before acting.)

These days, it looks like international laws of war matter most, including Common Article 3 of the Geneva Conventions, and its command that covered persons be tried by “regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”  That verbiage, Connell argues, has been construed by the Supreme Court in Hamdan as requiring compliance with courts martial practice, unless a “practical need” justifies a deviation.  And guess what?  There’s no such need here.  Well if not, Judge Pohl suggests, then the UCMJ comes into play, right?  What about the speedy trial rights of the accused, in that case?  The inquiry visibly pleases Connell, who returns the court to the Supreme Court’s “practical need” analysis.  There’s just no need at all for an alienage distinction, like that built into the MCA, just as there wasn’t any legitimate need put forward to justify the commissions challenged in Hamdan.

The Chief Prosecutor sums up Connell’s position: the Clause’s “law of nations” language includes Common Article 3 of the Geneva Conventions; as construed in Hamdan, Common Article 3’s “regularly constituted courts” language in turn insists upon the application of each and every usual trial practice, absent a practical need; and no need was present in Hamdan, so far as concerned the petitioner’s exclusion from certain proceedings.  Pause. Here’s the thing for Brig. General Martins: if one reads Hamdan, then one discovers that “regularly constituted” actually means, in essence, set up in accordance with recognized legal principles.  And the 2006 and 2009 commission statutes were set up in just that fashion, according to the Chief Prosecutor; Connell’s contrary interpretation is unfounded.  Moving briskly, Martins ends by reiterating the rationality behind Congress’s approach.