The Court Outside Court

In June 2006, the Supreme Court held that the commission's structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions. On September 28, the Senate voted 65–34 to pass S. 3930, the Military Commissions Act of 2006: legislation supplying express authority for a new commission system while attempting to close important routes through which detainees could challenge confinement.

The institutional pattern is more precise than executive power escaping law. A judicial limit has produced a legislative response that would change both the rules governing the tribunal and access to courts outside it. The government is not proposing to dispense with procedure. It is proposing to decide which procedure a prisoner gets.

This is an analysis of the Senate-passed bill as of September 28, not a claim that today's vote has already made it law. The distinction matters especially for people whose ability to contest detention would depend on its provisions taking effect.

The Challenge That Arrived Before Judgment

The Supreme Court's account in Hamdan v. Rumsfeld traces the route. Militia forces captured Hamdan, a Yemeni national, in Afghanistan in 2001 and handed him to the U.S. military. He was taken to Guantánamo in 2002. The president subsequently deemed him eligible for a military commission, and he was later charged with conspiracy to commit offenses triable by such a commission.

Hamdan's challenge concerned the commission's legal authority and procedures, including his ability to see and hear evidence against him. The Court's June 29 decision did not acquit him. It held that this tribunal could not proceed under the governing law.

The distinction is essential. A system can have a legitimate interest in prosecuting someone and still lack authority to prosecute him by a particular method. Treating those questions as interchangeable lets the accusation perform the work of a judgment.

Congressional action could address the absence of specific statutory authorization. It would not follow that every accompanying restriction on judicial access was necessary to do so. Establishing a tribunal and limiting challenges to detention are separate exercises of power, even when delivered in the same bill.

That separation is where the legislation deserves inspection. The person facing a commission needs a defensible trial. A person held without a commission trial needs a way to question why he is held. A promise of the former does not automatically supply the latter.

The Classification Before the Charge

Under the Senate text, the new commissions would try “alien unlawful enemy combatants.” The bill defines an alien as someone who is not a U.S. citizen. Its definition of unlawful enemy combatant includes people who engaged in, or purposefully and materially supported, hostilities against the United States or its co-belligerents without qualifying as lawful enemy combatants. It also includes people designated unlawful enemy combatants by specified tribunals operating under presidential or defense-secretary authority.

The classification has procedural consequences before any finding of criminal guilt. Proposed section 948d makes such a tribunal's finding of unlawful enemy combatant status dispositive for jurisdiction to try the person by military commission. It does not establish guilt of a charged offense. It establishes which trial system can hear the charge.

For a defendant, this means the dispute has more than one level. He may contest the prosecution's account of what he did. He may also dispute the designation that placed him before this tribunal. Calling both disputes “the trial” obscures which institution decides each one and what review remains available.

This is not a claim that every designation would be wrong. It is a reason to examine correction mechanisms before assuming that the classification is reliable. An official label with jurisdictional force needs more scrutiny, not less, because subsequent proceedings inherit its consequences.

The architecture begins before the courtroom. By the time counsel rises to object, an earlier administrative determination may already have selected the room.

A Trial System With Deliberate Departures

The bill does contain protections. Proposed section 949a provides for counsel, the presentation of defense evidence, cross-examination of witnesses who testify, and examination of and response to evidence admitted against the accused, subject to the chapter's provisions. It also provides for the accused's presence, with specified exceptions. A fair account cannot erase those provisions to make the system look simpler than it is.

Yet the bill expressly separates commissions from ordinary courts-martial. Their procedures would be based on the military justice system, but that system would not apply wholesale. Its judicial interpretations would not bind the commissions. Specified military-justice provisions concerning speedy trial, compulsory self-incrimination and pretrial investigation would not apply.

That does not mean the bill contains no protection against compelled testimony. Proposed section 948r separately says that no person shall be required to testify against himself in a commission proceeding. The legal question is which protections survive in the new scheme, not whether a familiar provision's exclusion eliminates every related safeguard.

The evidence rules illustrate the difference. The bill permits rules admitting hearsay that would not otherwise be admissible in a general court-martial, provided the offering party gives the required advance notice. The opposing party can obtain exclusion by demonstrating that the evidence is unreliable or lacks probative value.

There is a procedure for objection. There is also a burden placed on the party opposing admission. For defense counsel, those are not abstract drafting choices: they determine what must be investigated and demonstrated to keep disputed material out. The existence of an objection does not settle whether the accused will have the information needed to sustain it.

Statements obtained under coercion receive another carefully divided treatment. The bill excludes statements obtained by torture, apart from their use against a person accused of torture as evidence that the statement was made. For statements obtained before December 30, 2005, where the degree of coercion is disputed, it requires judicial findings of reliability, sufficient probative value and the interests of justice. For statements obtained on or after that date, it adds a finding that interrogation methods did not constitute prohibited cruel, inhuman or degrading treatment.

Those provisions should neither be flattened into “anything goes” nor polished into ordinary evidentiary practice. The date changes the statutory test. The calendar has acquired an evidentiary function.

The Prisoner Who Never Reaches an Appeal

The most consequential distinction comes outside the trial rules. Section 7 would remove habeas jurisdiction for an alien detained by the United States who has been determined to be properly detained as an enemy combatant—or who is awaiting that determination.

Habeas corpus is a route for challenging the legality of custody. It is not simply an appeal from a criminal conviction. The words “awaiting such determination” therefore matter: the proposed restriction would reach beyond people whose designation has been completed, let alone people convicted after trial.

The bill would also restrict other actions concerning detention, transfer, treatment, trial and conditions of confinement for the described category, while preserving specified review under the Detainee Treatment Act. Its effective-date language expressly reaches pending cases once enacted.

None of this establishes that every judicial route would disappear. The legislation retains routes of review, and its constitutional validity cannot be settled by its own declaration of jurisdiction. But its design is clear enough to evaluate: it seeks to replace broad avenues of challenge with specified, bounded proceedings.

For final commission judgments, proposed section 950g gives the District of Columbia Circuit exclusive appellate jurisdiction after other appeals under the chapter have been waived or exhausted. That court could act on matters of law, considering compliance with the chapter and, to the extent applicable, the Constitution and U.S. laws. Supreme Court review by certiorari would remain available.

An appeal exists. That correction is necessary, but insufficient. A route organized around a final commission judgment cannot, by itself, answer the detainee who has no such judgment to appeal. The review provisions must be read alongside the restriction on custody challenges, not offered as a substitute for reading it.

Delay belongs in this analysis even without predicting how long any case will take. A safeguard available after one sequence of events cannot be assumed to protect someone who remains outside that sequence. The practical question is what that person can initiate now.

The Earlier Door, and the New Boundary

Two years earlier, Rasul v. Bush held that federal courts had statutory jurisdiction to hear challenges to the legality of detention brought by foreign nationals captured abroad and held at Guantánamo. It did not order every detainee released or decide the merits of every claim. It established access to a forum where the government's position could be challenged.

In Hamdan, the Court also rejected the government's argument that the Detainee Treatment Act had removed jurisdiction over his already-pending case. The decision's treatment of the statute turned on which provisions Congress had made applicable to pending proceedings. The Senate bill now expressly addresses pending cases in its jurisdiction-stripping language.

The sequence is observable without pretending the outcomes are identical: judicial recognition of a route into court, legislation limiting that route, judicial interpretation of the limit, and another legislative attempt to draw the boundary. This is institutional contest, not an inevitable historical cycle. Legislators are choosing the next rule.

A coherenceist test begins with the people subject to it. Does the arrangement admit their challenge in a form capable of changing the state's decision? Or does it count as orderly because the government has made the objections harder to hear?

That test does not require abandoning prosecution or treating every detention claim as valid. It requires distinguishing a failed claim from a claim that cannot reach an adequate forum. Authorities can be correct about a particular prisoner and still construct a defective mechanism for discovering when they are wrong.

The Senate's vote would give the executive clearer statutory footing for commissions. It would also enlist Congress in responsibility for the boundaries surrounding them. Legislative authorization spreads institutional ownership; it does not relieve either branch of the obligation to justify the restrictions.

The immediate test is therefore not whether the proposed system contains judges, lawyers and appeals. It does. The test is whether the person held can bring the relevant question before someone empowered to answer it, at a point when the answer can still change his position.

If that route is narrowed, expect the dispute to return to the boundary itself: who may challenge detention, in which court, and under what authority. The machinery can become more elaborate while leaving its central question unresolved. A court is not an answer to a prisoner who cannot bring his question there.