Changes to the UCMJ needed to prevent Presidential Overreaching

In early May, President Obama announced the administration’s intention to continue the use of military commissions to try some of the suspected terrorists now being held atGuantanamo.  At the same time, the President announced a number of changes, including a prohibition on the use of evidence secured as a result of cruel, inhuman, or degrading treatment.  In addition, the President ordered the modification of the Commission’s evidentiary rules to place the burden on the party offering hearsay evidence to establish its reliability; previously, the party objecting to hearsay had the burden to show the evidence was unreliable, a burden that often fell on the accused. 

 

The Obama administration also announced it would be pursuing legislative changes to the Military Commissions Act.  To ensure that any procedures governing military commissions that depart from the established procedures in military courts-martial are based on legitimate national security concerns, we would recommend as well a specific change to Article 36(b) to the Uniform Code of Military Justice. As currently formulated, Article 36(b) requires that the rules and regulations for military commissions and the rules and regulations for military courts-martial be uniform insofar as practicable The Supreme Court concluded in Hamdan v. Rumsfeld that this was to ensure the rules for military commissions were not modified merely for the sake of expedience. 

 

Unfortunately, Article 36(b) does not set out a process to determine, if, when, and how the procedures for military commissions should depart from the procedures found in military courts-martial.  This lack of clarity means that the potential still exists for a President to modify the rules based upon expediency rather than legitimate national security concerns. 

 

To prevent such Presidential tinkering, Article 36(b) should be amended to provide that all rules, procedures and regulations for military commissions be uniform so far as practical, and that, before the President adopts any rules, regulations, and procedures that differ from those governing trial by courts-martial, he must submit to Congress a justification and explanation of why the rules governing courts-martial are not practicable. 

 

This amendment would accomplish several objectives.  First, it would clarify that the President has the responsibility to make the initial practicality determination if he decides that military commission procedures should depart from courts-martial procedures.  Because he, as Commander in Chief, will be the institutional actor seeking to establish military commissions, it is appropriate that he have the burden of showing impracticality.   

 

Second, this amendment would require the President to more completely and precisely articulate why he believed a departure from the courts-martial rules and procedures was necessary.  The amended Article would more fully align the use of military commissions with historical precedent—precedent that strongly favors procedures consistent with those used in courts-martial.  If the President wanted to depart from that precedent, then he would have to fully explain and justify such a departure.  This requirement will help to ensure that departures are not motivated by a desire simply to develop a more convenient adjudicatory tool.

 

Third, by requiring the President to explain why existing procedures are not practical, the amended Article 36(b) would give Congress an opportunity to evaluate the President’s exercise of his authority.  Congress could review the explanation put forth by the President and make its own determination as to whether his decision was justified.  If Congress disagrees with the President, it has the constitutional authority to take action—either to seek compromise or otherwise prevent the President from changing the rules and procedures.  The very act of reviewing these changes would be beneficial, increasing transparency and affording citizens the opportunity to understand the implications of the suggested changes.

 

Finally, this amendment to Article 36(b) would help to ensure that the President will develop a record stating why particular traditional procedures are impracticable.  The courts would then have a basis upon which to evaluate whether the President’s determinations satisfy Article 36(b).  And so the third branch of the government would provide an additional check upon a President tempted to allow an interest in expediency to trump the rule of law.

Victor Hansen and Lawrence Friedman, New England Law Boston

Comments

[Winthrop's Ghost]

Point of clarification -- 10 USC 836 uses the word "practicable," not "practical," in its text. Recommend you change your post accordingly.

[sacha]

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