Proposed Amendments to Military Commission Order No. 1 ( 2005 )

Proposed Amendments to Military Commission Order No. 1
The Secretary of Defense could, consistent with the President’s Military Order of November 13, 2001,
revise Military Commission Order No. 1 so that the presiding officer would rule upon all questions
of law (subject to the requirements of section 4(c)(3) of the Military Order regarding questions of
admissibility), and the other members of the commission would make findings and pronounce
sentence.
August 12, 2005
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF DEFENSE
You have requested our view on whether certain proposed amendments to the
Secretary of Defense’s Military Commission Order No. 1 (“Military Commission
Order”) are consistent with the President’s Military Order of November 13, 2001,
3 C.F.R. 918 (2001 Comp.) (“President’s Military Order”). We have reviewed the
proposed amendments and conclude that all of them are consistent with the
President’s Military Order.
One proposed change merits special discussion: It has been proposed, through
several of the revisions, to amend the Military Commission Order so that (i) the
presiding officer of a military commission would make all legal rulings but not
vote on findings or sentence and (ii) the other members of the commission would
vote on findings and sentence but not make any legal rulings (except on some
questions of admissibility). As explained below, such amendment would be
consistent with the President’s Military Order.
The President’s Military Order, entitled “Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism,” provides, among other
things, that the Executive Branch administer trials by military commission of al
Qaeda members and other foreign individuals who have committed or supported
acts of international terrorism. See President’s Military Order §§ 2(a), 4(a); see
also id. § 7(c) (order “is not intended to and does not create any right, benefit, or
privilege, substantive or procedural, enforceable at law or equity by any party”);
Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 8–9 (D.C. Cir. 1999) (holding that
there was no “judicial review” of an executive order that expressly disclaimed
creating any rights, and rejecting the use of such order in seeking judicial review
of agency action as “an indirect—and impermissible—attempt to enforce private
rights under the order”). The Secretary of Defense, in turn, is expressly authorized
by that order to promulgate such “orders and regulations” as “may be necessary”
to provide for trial by military commission. President’s Military Order § 4(b). His
orders and regulations shall “include, but not be limited to, rules for the conduct of
the proceedings of military commissions, including pretrial, trial, and post-trial
procedures, modes of proof, issuance of process, and qualifications of attorneys.”
Id. § 4(c). In addition, the procedures adopted by the Secretary must “at a mini-
mum” meet eight specific requirements set forth in section 4(c). Among these
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eight requirements, and particularly relevant here, is section 4(c)(2), which
requires “a full and fair trial, with the military commission sitting as the triers of
both fact and law.” In addition, section 4(c)(3) provides for the “admission of such
evidence as would, in the opinion of the presiding officer of the military commis-
sion (or instead, if any other member of the commission so requests at the time the
presiding officer renders that opinion, the opinion of the commission rendered at
that time by a majority of the commission), have probative value to a reasonable
person”; that is, section 4(c)(3) requires that the presiding officer make rulings on
admissibility, subject to the override of a majority of the commission.
Pursuant to these authorities and requirements, the Secretary of Defense prom-
ulgated the Military Commission Order on March 21, 2002. That order allows for
both the presiding officer and all other members of the military commission
together to decide questions of law or fact (subject to the special rule for questions
of admissibility). See, e.g., Military Commission Order §§ 5(L), 6(F).
To determine whether the above-described proposal, dividing authority be-
tween the presiding officer and the other members of a commission, is consistent
with the President’s Military Order, the primary question is whether such division
would contravene the requirement of section 4(c)(2)—that “the military commis-
sion sit[] as the triers of both fact and law.” Although it is possible to read this
section to require each member of a military commission to decide on all questions
of law and fact, in which case the proposed change would violate section 4(c)(2),
it is also permissible to read it as merely requiring that the military commission—
as opposed to some other entity—decide all questions of law and fact at trial. The
latter is a reasonable reading of section 4(c)(2) given its text and the context.
The text of section 4(c)(2) might be considered awkward in referring to “the
military commission” (singular) as the “triers” (plural). This construction,
however, likely just reflects that the term “military commission” is a collective
noun. It therefore “can take either singular or plural verbs and subsequent
pronouns.” Columbia Guide to Standard American English 100 (1993). Here,
given the plural “triers,” section 4(c)(2) appears to use the term “military commis-
sion” to mean the “military commission members,” as individuals, rather than the
military commission as an entity. See Oxford Dictionary of English Grammar 69
(1994) (“The choice of singular or plural verb—and corresponding pronouns and
determiners—depends on whether the group is considered as a single unit or a
collection of individuals.”); Morton S. Freeman, The Grammatical Lawyer 305
(1979) (“Nouns known as collective nouns may be either singular or plural,
depending upon whether the group is considered as a whole—in which case
singulars are used—or as individual members—in which case plurals are used[.]”).
Under this reading of “military commission,” it is true that one might conclude
that the word “both” in section 4(c)(2) indicates that each member of the military
commission must decide all questions of fact and law. But the language is not
unequivocal on this point, and one also could conclude that section 4(c)(2), in
requiring that the military commission members be “triers of both fact and law,”
merely indicates that some from among the military commission members must
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resolve all legal or factual questions. The quoted phrase, in other words, may be
read as ensuring that the military commission, in conducting “a full and fair trial,”
is complete in and of itself with regard to both fact and law—not delegating any of
its powers as trier to any other court or tribunal. If, for example, a small firm
composed of two policy experts and a lawyer were hired to brief members of
Congress on “both the facts and law” underlying a particular bill, it would at the
very least be reasonable to understand the terms of the retention as not requiring
each of the members of the firm to master all issues, but rather as leaving the
members free to divide up the responsibilities as appropriate, by, for example,
having the policy experts handle the factual issues and the lawyer handle the legal
issues. The firm would still be providing the briefing as to both types of issues.
Thus, under the most natural reading of the term “military commission” as used in
section (4)(c)(2), together with this latter reading of the phrase “triers of both fact
and law,” that section may reasonably be interpreted as not barring the proposed
change in the Military Commission Order.
Alternatively, and notwithstanding the plural “triers,” section 4(c)(2) might be
read to use “military commission” to mean the military commission as an entity.
That sense does seem to be the more frequent usage in section 4. See President’s
Military Order § 4(a) (providing that a covered individual shall “be tried by
military commission for any and all offenses triable by military commission”),
§ 4(c)(1) (providing for “military commissions to sit at any time and any place”),
§ 4(c)(3) (referring to the “presiding officer of the military commission” and “any
other member of the commission”). Under this reading, section 4(c)(2) would
simply require that the military commission as an entity decide in some authorized
fashion all questions of fact or law, without specifying how the entity did so and
thus without imposing any requirement regarding the duties of individual commis-
sion members. Thus, whatever the better reading of section 4(c)(2), it would not
prohibit the Secretary of Defense from specifying the details for how the commis-
sion made such decisions.
In addition, other provisions of the President’s Military Order further support
the view that not every member (or even a majority of the members) of a military
commission need participate in or approve every decision. Section 4(c)(3), for
example, distinguishes between the roles of the “presiding officer” and “other
member[s],” thus expressly contemplating the separate allocation of authority
among military commission members. And sections 4(c)(6) and (c)(7) provide for
conviction and sentencing “only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a majority being
present.” Nothing in these two provisions requires that each member vote on
findings and sentence. To the contrary, by making clear that the military commis-
sion need not act by unanimity or with all members present, they contemplate
otherwise and, together with section 4(c)(3), reinforce our view of the permissible
readings of section 4(c)(2).
As noted above, the President’s Military Order also expressly grants to the
Secretary of Defense the broad authority to promulgate such “orders and regula-
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tions” as “may be necessary” to “carry out” the President’s order to provide for
trial by military commission, id. § 4(b), which orders and regulations shall include,
but are not limited to, “rules for the conduct of the proceedings of military
commissions,” id. § 4(c). See also id. § 6(a) (“[T]he Secretary of Defense shall
issue such orders and regulations as may be necessary to carry out any of the
provisions of this order.”). Two related points follow from this grant. First,
because the President has committed to the Secretary the authority to carry out the
presidential order requiring military commissions, the Secretary has discretion to
follow any reasonable interpretation of ambiguous provisions in the President’s
order. See Udall v. Tallman, 380 U.S. 1, 18 (1965) (agency interpretation of
presidential orders is lawful “if . . . the [agency]’s interpretation is not unreasona-
ble, if the language of the orders bears [its] construction”); Kester v. Campbell,
652 F.2d 13, 15 (9th Cir. 1981) (“In light of an agency’s presumed expertise in
interpreting executive orders charged to its administration,” the agency’s interpre-
tations should receive “great deference.”). Section 4(c)(2) is such a provision and,
as shown, the Secretary may reasonably interpret it such that it would permit the
proposed change in the Military Commission Order. Second, the President has
granted to the Secretary broad authority to specify details for the workings of the
military commission. See Letter for Raymond J. Kelly, Chairman, Railroad
Retirement Board, from Robert W. Minor, Acting Deputy Attorney General,
Department of Justice at 1 (Sept. 13, 1954) (where an executive order gave
agencies authority to establish personnel regulations respecting national security,
and where that order did not address a particular matter, that matter was “left to the
discretion of each agency”); cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 843 (1984) (agency’s power to administer a statute “necessari-
ly requires the formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress”) (internal quotation marks and citation
omitted). Therefore, and under a reasonable reading of section 4(c)(2), the
Secretary has authority under section 4(b) to specify particular duties for commis-
sion members to the extent that the President has not expressly done so in his order
(as he has through the eight specific requirements in section 4(c)).
We therefore conclude that the Secretary of Defense could, in a manner con-
sistent with the President’s Military Order, revise the Military Commission Order
as proposed so that the presiding officer would rule upon all questions of law
(subject to the requirements of section 4(c)(3) regarding questions of admissibil-
ity) and the other members would make findings and pronounce sentence.
C. KEVIN MARSHALL
Deputy Assistant Attorney General
Office of Legal Counsel
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