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Article Excerpt
"I want us to see the process of legislation ... as ... the representatives of the community com[ing] together to settle solemnly and explicitly on common schemes and measures that can stand in the name of them all...."--Jeremy Waldron, The Dignity of Legislation (1)
"Sit down, my son. We don't read most of the bills [that we vote on]."--U.S. Representative John Conyers (2)
INTRODUCTION I. THE GREAT WRIT AND THE GREAT WORRY II. TEXT A. The Jurisdictional Grant B. The Definition Section 1. A perplexing parenthetical 2. Surplus language and its political uses 3. Settling the issue? C. "Principals" and Offenses 1. New language 2. Statutory esotericism III. PRIMARY EXECUTIVE BRANCH ELABORATION: REGULATIONS A. Miscellanea B. The Rules' Take on Jurisdiction C. "Principals" and Offenses Redux: Resettling the Issue IV. HISTORY AND MEANING(S) A. Presidential Predisposition B. Congress's View V. META-ISSUES AND STRATEGY CONCLUSION
INTRODUCTION
On October 17, 2006, seated in the East Room of the White House, President George W. Bush signed the Military Commissions Act of 2006 (3) (MCA) into law. (4) Moments before, he succinctly--if not entirely accurately (5)--recounted the Act's history:
In the months after 9/11, I authorized a system of military commissions to try foreign terrorists accused of war crimes.... [T]he legality of the system I established was challenged in the court, and the Supreme Court ruled that the military commissions needed to be explicitly authorized by the United States Congress. ... I asked Congress for that authority, and they have provided it. (6)
But what exactly did the MCA grant our federal executive authority to do?
At the close of his speech, President Bush claimed that those who had supported the MCA were bequeathing to America a "freer, safer ... world." (7) But in the weeks preceding the bill's passage, many had vociferously disagreed with the President's characterization of the bill. (8) In editorials (9) and in legal web logs, (10) constitutional scholars were up in arms. Tellingly, complaints came from across the political-ideological spectrum, and at least one cable news anchor went so far as to denounce the MCA as the "[b]eginning of the end of America." (11) There seemed to be much to disagree over. Said one vocal law professor, "Choosing the most indefensible provision of this bill is a tall order--there are many worthy candidates." (12) Still, objections to the bill did coalesce around certain poles. Chief among detractors' concerns were provisions of the MCA appearing to provide the executive with the authority to try American citizens before military commissions or detain them indefinitely. (13)
Although some defenders of the law sought to put such worries to rest by arguing that the law only applies to aliens (i.e., noncitizens), (14) the intensity of dispute in public discourse over the meaning of the MCA reflects not just wishful or fearful thinking on the part of participants but deep ambiguity in the language of the statute itself. Indeed, in some respects, the MCA appears to lack coherence. (15) Yet, to date, no one has offered a systematic academic analysis of the law in an attempt to discern its "ultimate" meaning. (16)
As a work of statutory interpretation, that is the project of this Note. Like any exegesis, it might only be limited by the range of source materials available for study. However, in the interest of space, I have elected to examine only the major customary textual and historical sources available in the public record. Based on the statutory text of the MCA, Defense Department materials, public comments of the President, and legislative history, I attempt to answer the question: who may be tried under the MCA? There is no in pari materia analysis, nor any based on wide-ranging periodical research, for I am concerned neither with completely hypothesizing judicial interpretation nor with public construction of meaning.
Note, too, that this is not a work of constitutional interpretation as such; that is, even though quasi-constitutional principles of interpretation (17) may come into play, this Note does not aim to dispute the constitutionality of the MCA. Rather, it seeks to uncover what exactly the MCA purports to authorize and to sketch the limits of what the executive might claim it to authorize.
Given the executive branch's structural orientation towards self-aggrandizement and the commissions' ability to hand down death sentences, discerning now who may be tried under the MCA is vital if we are to know how strong the rule of law remains in our country. But there are further reasons for exploring this topic that get us to the heart of what the rule of law means that will not be affected by how courts, Congress, or the President weigh in on the MCA in the future. Courts may strike it down, Congress may repeal it, or future Presidents may refuse to enforce it. But even if any of those possibilities should come to pass, the MCA will stand as a testament to its historical moment, one we have not yet left behind and the echoes of which we may someday hear again. Considering its textual and contextual meaning, its substance and history, can, then, teach us much about how to write or not write a law, depending on what one's goals are and where one sits--the Capitol or the White House.
There are strong internal and external pressures on any presidential administration to embody the oft-repeated institutional virtues of the executive branch: flexibility and dispatch. (18) Internally, a President will want to exert control over the executive branch bureaucracy in order to efficaciously advance his or her broader policy agendum. Externally, a President will be politically rewarded for accomplishing the goals he or she was elected to meet. These pressures are never stronger than in the wake of a large-scale terrorist attack on domestic soil.
However noble the goal of protecting national security, a problem arises when an administration resorts to running roughshod over established precedent or to outright lawbreaking in its efforts to protect the great mass of voters. The situation grows even more complex when presidential policy and tactics both at times seem driven as much by substance as by an ideological commitment to expanding executive power or "restoring" it to some imagined ideal. (19)
Against this backdrop, enacting ambiguous legislation creates an alluring opportunity for executive lawmaking. In the linguistic space opened by a poorly written statute unencumbered by a robust legislative history, the executive will inevitably act, and it will do so in accord with its own vision of its proper constitutional role. Thus, uncovering the meaning of the MCA--the substantive provisions of which are still in force (20)--tells us something not only about the substance of the statute itself but about the various uses of legiscraft generally.
I. THE GREAT WRIT AND THE GREAT WORRY
In Boumediene v. Bush, the Supreme Court recently invalidated provisions of the MCA attempting to suspend habeas corpus for detainees in the war on terror held at Naval Station Guantanamo Bay, Cuba (Guantanamo). (21) Yet, for the reasons outlined above, it is worth pausing to ponder the original scope of the legislation. In attempting to suspend the writ, the MCA reached for a vast expansion of presidential power:
Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter. (22)
If applicable to citizens and read in conjunction with the threat of indefinite detention and execution, (23) the MCA would have created a parallel world in which the executive has all but plenary authority over the ultimate fate of every American. In blunter times, we would call this "tyranny." (24)
Because the Boumediene majority did not construe the MCA as a "formal suspension of the writ," (25) it did not undertake an independent assessment of the factual predicates that the Suspension Clause requires for legitimate congressional action under its terms. (26) Still, in order to shed light on the executive mindset informing its interpretation of the MCA in other areas, it is worth exploring briefly how the President might have tried to claim that the MCA enacted a formal suspension of the writ in order.
The Constitution stipulates that the Great Writ may only be suspended when in times of "Rebellion or Invasion the public Safety may require it." (27) It does not appear that either rebellion or invasion--as those words are usually understood--currently plagues the United States. (28) Still, one can imagine the President claiming that the United States is under "invasion" by terrorists. Whatever one may think of the Bush Administration's view that unconventional conflict imbues words once thought clear in meaning with unconventional content, (29) it remains a political and legal fact that it believed that "war" is the proper paradigm for characterizing our conflict with terrorists (30) and construed its powers accordingly. Setting ambiguity to rest, President Bush proclaimed, "The war on terror is no figure of speech." (31) (Incidentally, the Obama Administration, or at least some elements within it, appears to agree. (32))
The Bush Administration also believed that terrorists are present in the United States. (33) Indeed, in remarks on the day President Bush transmitted his draft proposal of the MCA to Congress, he pressed both of these points. He referred to our conflict with terrorism as "war" twelve times, (34) and alluded to the shadowy presence of terrorists within the territorial United States eight times, once going so far as to speak of "infiltrat[ion]" (35)--not quite "invasion," but close. (36)
President Bush's legal advisors may have backed an expansive conception of invasion as well. In defending the constitutionality of the MCA as a suspension of the writ, one has claimed that "the United States suffered the equivalent of an invasion on September 11, 2001." (37) Therefore, he says, "[w]e need not restrict 'invasion' to an attack by a nation-state in which a significant enemy armed force has a sustained presence in American territory." (38) Equivalence is enough. Further, argues this former advisor, the mere anticipation of an invasion--or, one presumes, anticipation of its attack "equivalent"--can suffice to satisfy the Suspension Clause. (39)
Legal advocates should take note: these are awfully anemic arguments. First, it is hard to defend the President's characterization of the American struggle against terrorism as "war." (40) While many sincere and intelligent thinkers disagree (41) (including some of those now lodged in the Obama Administration (42)), courts have largely acquiesced in this usage, (43) and a discourse on this issue too vast to properly treat here has arisen, (44) I do not consider this a close question. To speak of a "war on terror" is to invoke a metaphor. (45) It is a uniquely apt metaphor given the kind of force involved in the underlying activities, but it is a metaphor nonetheless. (46) For decades, the United States and most other countries treated terrorism as a criminal problem, and many experts believe that we should continue treating it as such. (47) Continuing to do so would both deny terrorists the legitimacy of being treated as though they stand on equal footing with state actors (48) and would preempt many of the legal and semantic battles that the conflation of terrorism with war has generated.
Second, even supposing that terrorists are in the United States plotting vast destruction, it is difficult to defend the notion that their presence constitutes "invasion." In standard American English, this word connotes large, even massive, intrusions into one country by the military forces of another country with the intent of occupation and subjugation (49)--in other words, conquest. (50) Despite the hideous death toll, "invasion" cannot describe what happened on September 11, 2001, or what has happened on American soil since. Al Qaeda is a nonstate actor whose funding comes from private sources. (51) Battalions of enemy soldiers are not lining up at our borders or landing ships on our shores. (52) Indeed, as Richard A. Epstein has pointed out, "a world of difference separates the risk of future terrorist acts from a present invasion on American soil." (53) Moreover, Al Qaeda's goal is, at its most ambitious, not to conquer the United States but to drive it from the Middle East. (54)
Nonetheless, for present purposes what matters is what the executive believes. Practically and quite literally speaking, it is on this basis that the executive will act. If the President does believe that the United States is under invasion by an enemy with whom we are at war, then he is likely to construe his powers broadly, even with respect to citizens. (55)
Without rehearsing all of the MCA's infirmities or straying too far from the central purpose of this Note, it is worth recounting some of the ways that MCA-authorized military commission procedures vary from traditional standards of criminal procedure before Article III courts. Under the MCA, military commissions make findings of both law and fact, and therefore the judge and jury function is mixed within a single body. (56) Secret evidence may be used against defendants, (57) and, under certain circumstances, evidence extracted through torture is admissible. (58) Defendants may be compelled to testify against themselves. (59) There is no right to a speedy trial. (60) There are no double jeopardy rules: if the Department of Defense is unsatisfied with the outcome of a trial, it may order a retrial. (61) And then do so again. (62) Moreover, the MCA may authorize the indefinite detention of captives in the war on terror. (63) In light of these statutory features, whether the MCA indeed does apply to citizens is an issue that demands resolution.
In the following pages, I will first analyze the text of the MCA on its own terms. While demonstrating the statute's ambiguities and contradictions, I will sketch possible executive department interpretations based first on the text itself and then on executive-branch materials, presidential pronouncements, and legislative history.
At the outset, I wish to acknowledge the following realist premises: Congress is a "they," not an "it" (though the less jarring and more traditional "it" locution will be used throughout). It does not have a singular will. Much of what it produces results from compromise among parties with different views of the meaning of specific words, of the purposes of the legislation in question, and, indeed, of the purposes of legislation generally. There is, therefore, no one correct reading of statute. Moreover, statutes, for all practical purposes, ultimately acquire meaning when applied, for only then can we count their effects. Thus, the interpretation of statutes is, at best, the elaboration of sense. Certain principles of constitutional politics or democratic theory may persuade the reader that laws ought to be interpreted one way or another, in particular with deference to legislative intent, (64) but the reader's own commitments and policy judgments--conscious and unconscious--inevitably contribute to the construction of meaning. In the hope of cabining these effects of bounded human subjectivity, I have generally limited this Note to descriptive analysis.
II. TEXT
The MCA has numerous provisions that seemingly touch upon the issue of who may be tried before military commissions in the war on terror. I address them independently and in concert in order to discover how they may interact to impose internal limitations on the jurisdiction of military commissions.
A. The Jurisdictional Grant
Section 948d of the MCA sets forth the jurisdiction of military commissions at Guantanamo. It reads, in relevant part:
(a) Jurisdiction.--A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) Lawful Enemy Combatants.--Military Commissions under this chapter shall not have jurisdiction over lawful enemy combatants....
(c) Determination of Unlawful Enemy Combatant Status Dispositive.--A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of the Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter. (65)
On their face, these provisions grant military commissions under the MCA jurisdiction over noncitizens ("alien[s]") (66) who are also "unlawful enemy combatant[s]" (67) (but not noncitizens who are "lawful enemy combatants" (68)) as determined by the executive. (69)
However, note that the jurisdictional grant is a positive grant that contains no exclusivity language. That is, it does not stipulate that military commissions only have jurisdiction over alien unlawful enemy combatants. Applying the canon of expressio unius est exclusio alterius--which holds by negative implication that the express mention of one thing excludes all others--one could read [section] 948d to contain an implied limitation on the jurisdictional grant. This canon is often employed by the Supreme Court, (70) and seems especially appropriate in cases in which statutes seem to depart from a judicially cognizable normative baseline. (71) Given that the entire reason the MCA exists is to overcome the Supreme Court's decision in Hamdan v. Rumsfeld, which held that the President's prior military-commissions system departed so thoroughly from the normative (in this case, constitutional) baseline as to require congressional authorization (72)--which authorization the MCA purports to grant--there is a good argument for applying the canon here and reading [section] 948d as containing an implied limitation on military commissions' jurisdiction.
On the other hand, expressio unius is a weak canon, and courts freely disregard it when they believe it to produce absurd results. (73) Here, the executive could argue that the MCA itself represents a shift in the normative baseline with reference to which the MCA should be interpreted. On this account, in the face of the Court's high-minded, adverse ruling against the President in Hamdan, the people, through their representatives, spoke clearly in favor of expansive executive power. The absurd result in applying expressio unius, then, would be to undermine the will of the people. The two political branches, Congress and the President, have agreed on a policy, and now courts, out of respect for the democratic process and their own institutional limits, ought not to interfere with those judgments by reading the MCA's jurisdictional grant in a manner inconsistent with the normative baseline shift it apparently embodies.
On its own, this would seem to militate in favor of a less restrictive reading of the jurisdictional grant. But one other factor weighs in favor of such a reading: the upshot of inference by negative implication depends on what one's understanding of the predicate is. Those opposed to expansive presidential power take as predicate the specific substance of the jurisdictional grant, but one could also take as predicate the abstract character of the provision. In terms of the latter, the jurisdictional grant is a positive grant of authority. As a positive grant, therefore, one might argue that what exclusio unius excludes are implied limitations on the grant. This, however, is a strained and unconventional application of the canon, and should not guide interpreters.
Moreover, the contention that the MCA represents the popular repudiation of the Supreme Court's decision in Hamdan and therefore reflects a normative "baseline shift" should be approached with skepticism. The MCA was passed in the waning days of the 109th Congress, and just a few weeks after adoption, the Republican Party, which had championed the legislation, lost its majority in both chambers. If anything, that stunning defeat--a greater party swing than in the so-called "Republican Revolution" of 1994--should be considered by courts as a popular repudiation of whatever purported baseline shift the 109th Congress may have intended to effect. (74)
Finally, [section] 948d(a) and 948d(c) seem, on their faces, to set forth entirely different standards for falling within the jurisdiction of military commissions under the MCA. Whatever else may be true or derivable from [section] 948d(a), it at least makes clear that being an alien unlawful enemy combatant brings one within the authority of military commissions in the war on terror. (75) Section 948d(c), however, may be read as a vastly broader jurisdictional grant. It states that being found an "unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission." (76) Depending on how the word "dispositive" is directed, this provision could mean vastly different things. "Dispositive" could be directed backward, towards Combatant Status Review Tribunal (CSRT) findings. If so, then [section] 948d(c) would only seem to indicate that CSRT decisions are final for the purposes of finding jurisdiction under [section] 948d(a) and therefore would not alter that jurisdictional grant. But "dispositive" could also be directed forward, towards "for purposes of jurisdiction." (77) On this reading, [section] 948d(c) means that a CSRT finding of unlawful enemy combatant status is alone sufficient for trial before a military commission.
That sufficiency is unaffected by the Boumediene Court's granting of habeas review of CSRT decisions. For even though those decisions may no longer be "dispositive" in the absolute sense, they remain so with respect to the executive's self-regarding administrative procedures. The Boumediene Court provided a means for testing the President's assertions vis-a-vis any particular person accused of being an unlawful enemy combatant, but, going no further, the Court provided no guidance as to what CSRT determinations would be struck down or on what basis. It certainly did not address itself to the issue of citizenship. (78) Therefore, whether the President, through CSRTs, could legally classify citizens as unlawful enemy combatants remains an open question. (79)
Titles, traditionally a weak and disputed source of interpretive authority (80) are here of little help in interpreting the MCA's jurisdictional grant. Section 948d as a whole is called Jurisdiction of military commissions." (81) This would seem to indicate that the section read as a whole should be determinative of jurisdiction, but that alone tells us nothing about the nature of the jurisdictional grant. Does it mean that every individual subsection should be read to confer jurisdiction (so that the broader, forward-directed application of "dispositive" becomes tenable) or does it mean that subsections should be read together to craft a single rule (so that subsection (c) is subordinated to subsection (a))? What kind of interstitial rules would require one or the other approach? Could the fact that subsection (a) is, somewhat repetitively, titled "Jurisdiction," provide the answer (suggesting the second approach)? Or, on the other hand, does the declarative mood of the title of subsection (c) suggest that we read it constructing "dispositive" as forward-directed and therefore accept the former approach to the section as a whole, taking each subsection as a separate grant of authority? There are no definitive answers here.
B. The Definition Section
Taking the jurisdictional grant of [section] 948d at face value, I now turn to the definition section of the MCA. In relevant part, [section] 948a reads:
(1) Unlawful enemy combatant.--
(A) The term "unlawful enemy combatant" means--
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
(2) Lawful enemy...
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