Friday, November 25, 2011

Military commissions are nothing more than second-class "justice" for non-citizens

Charges that Military Commissions are an Unconstitutional Second-Class System of Criminal Justice for Non-Citizens

A number of Japanese and Asian groups have filed an amicus brief in the U.S. Court of Appeals, Washington, D.C. in United States v. Hamdan, charging that Congress has created a second-class system of criminal justice for non-citizens through its much-maligned military commissions.

The brief was filed by the Japanese American Citizens League, Asian American Legal Defense and Education Fund, National Asian Pacific American Bar Association, and the Asian Law Caucus, and was authored by law professors Jonathan Hafetz and Jenny Carroll of Seton Hall University School of Law, lawyers from Gibbons P.C., Lawrence S. Lustberg and Jonathan Manes, and Professor David Cole of the Georgetown University Law Center.

The brief charges that a system of criminal adjudication, such as the military commissions, which discriminates based upon citizenship, violates the Equal Protection Clause of the Constitution. The brief places the commissions within the context of a legally dubious and at times shameful history of discrimination against non-citizens, including the internment of more than one hundred thousand Japanese-Americans during World War II, for which the United States government ultimately paid monetary reparations and issued an apology.

Seton Hall University School of Law Professor Jonathan Hafetz, co-author of the brief, stated, “The Court has a chance in this case to reaffirm the rule of law and put an end to an ad hoc system of adjudication—unequal and unconscionable—which undermines the principles for which this country and its Constitution stand.”

The appellant, Salim Hamdan, was the subject of the landmark 2006 Supreme Court decision, Hamdan v. Rumsfeld, in which the Court ruled that the military commissions as constituted were illegal because, among other things, they did not meet the minimum standards of fairness required by the Geneva Conventions. Although since revised, the military commissions still afford fewer procedural protections and fair trial guarantees than either U.S. federal court trials or military courts-martial. U.S. citizens are not tried by military commission, thereby setting up an unconstitutional two-tiered system. This new appeal will be the first time a federal court decides whether the new commissions are legal. After the Supreme Court’s decision, Hamdan himself was recharged under a revised Military Commission scheme and found guilty of one count of providing material support to a terrorist organization, but was not found guilty of supporting any specific terrorist plot or act. He was sentenced to 5 months beyond the 61 months he had already served at Guantánamo. Hamdan has since finished serving his sentence and returned home to Yemen, but continues to appeal the legality of his trial and conviction.

Brief co-author Jonathan Manes, a John J. Gibbons Fellow in Public Interest in Constitutional Law, Gibbons P.C., noted, “After the Supreme Court found the military commissions to be unconstitutional, Congress tried to revise them but failed to address critical deficiencies, so that they continue to target noncitizens for inferior treatment. The courts must now intervene to correct this fundamental flaw."

Seton Hall Law Professor and brief co-author Jenny Carroll agreed, stating: “Creating a process that treats citizens differently from non-citizens not only cuts against the Constitution's core promise of due process for all, but undercuts fundamental fairness and justice. You need only consider “separate but equal” and the Japanese internment policies to know that, if nothing else, the Constitution demands that our system of  justice be fair and that it apply equally to us all— not just a select few.”