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The Use of Military Tribunals: Incompatible with the Notion of ‘Full and Fair’ Brett Corbett Political Science Honors Thesis First Reader: Daniel Tichenor Second Reader: Stuart Chinn March 17, 2010 2
Introduction For nearly a decade now, the United States has been waging the War on Terror. One of the most problematic aspects of the effort has been the system by which we detain, prosecute, and bring alleged terrorists to justice. President Bush’s answer to this problem was to use military tribunals, authorized by a military order he issued in November of 2001. The military tribunals established by this order operated outside of our normal civilian courts and military courts‐martial and had special procedures designed to try terrorists. With our civilian and military courts fully functional, were military tribunals justified under the circumstances? The qualities and conduct of the military tribunals that President Bush authorized have brought forth many fundamental questions about how our country wants to serve justice to non‐citizens. Because the procedures used in military tribunals do away with many of the standards found in our civilian courts designed to protect the accused, there has been controversy as to whether the use of military tribunals is warranted. In this paper we will look at the historical foundations for the modern utilization of military tribunals, the issues surrounding the use of tribunals in the War on Terror, and finally the challenges and reforms to military tribunals since their enactment. The evaluation of these areas will ultimately demonstrate that the use of military tribunals is not justified. Historically, the use of military tribunals has been limited; customarily employed in one of three circumstances. First, they had been used to stand‐in for civilian courts, trying civilian crimes in territory governed by military law when the civilian courts are closed. Tribunals were used in this fashion during the Civil War, notably in the Ex Parte Milligan 3
case. Second, they have been used, again as a stand‐in, for civilian courts in occupied territory, for example in Germany after World War II. Third, they have been used to try violations against the law of war during times of war, typically when courts‐martial lack jurisdiction to try a particular defendant of offense. The military tribunals used for the War on Terror were based largely on the third model.1 For prosecuting terrorists, military tribunals allowed the government to protect our national security secrets and provided the capability to try suspects without many of the constitutional protections given to defendants in the federal court system. The rules governing military tribunals disposed of many traditional protections afforded to defendants. The Bush administration decided that the advantages that military tribunals offered over civilian courts warranted their use. We should not forget however, that it remains the duty of the courts in times of both peace and war to preserve unimpaired the constitutional safeguards protecting civil liberties. Critics of the decision would contend that the purported advantages that military commissions offered often came at the expense of fairness. Defendants subject to military tribunals have been denied access to evidence and the charges against them, sparking controversy and litigation. In response to several successful Supreme Court challenges brought on behalf of detainees, Congress enacted assorted legislation intended to bring military tribunal proceedings in line with the Court’s rulings. Congress’s piecemeal approach to reform ended up jamming federal court dockets and led to many subsequent challenges. In the eight years since President Bush’s military order, only two trials by military tribunal have 1 Goldman, Jerry. "U.S. Supreme Court Media". Oyez. 3/17/10 <http://www.oyez.org/cases/2000‐
2009/2005/2005_05_184/opinion>. 4
been completed.2 As a presidential candidate in 2008, Barack Obama began campaigning for the closure of Guantanamo and the abandonment of military tribunals for terrorist trials. When President Obama was elected to the White House, many believed this signaled the end of military tribunals. In January of 2009, newly elected President Obama pledged to close Guantanamo and end military tribunal proceedings, “as soon as practicable, and no later than one year from now.”3 The President continued, “the message we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly; we are going to do so effectively; and we are going to do so in a manner that is consistent with our values and our ideals."4 Since then, the Obama administration has run into numerous roadblocks in their effort to close Guantanamo and employ civilian courts to try detainees. In light of the controversy surrounding the prospect of trying Khalid Sheikh Mohammed in New York civilian courts, the debate about military tribunals has taken on renewed significance. In the first chapter we will look at the most recent historical application of military tribunals; the Nazi saboteur case at the tale end of World War II. The case provides an insight into how the procedures of military tribunals resulted in a less fair trial for the saboteurs, and by extension, for future applications of military tribunals. President Bush constructed the procedures for the military tribunals used in the War on Terror based on foundation provided by the Nazi saboteur case. In the second chapter we will examine the 2 Glaberson, William. "U.S. May Revive Guantánamo Military Courts". The New York Times. 3/10/10 <http://www.nytimes.com/2009/05/02/us/politics/ 02gitmo.html?_r=2>. 3 Martinez, Louis. "Obama Order to Shut Gitmo, CIA Detention Centers". ABC News. 3/17/10 <http://abcnews.go.com/Politics/LawPolitics/story?id=6707095&page=1>. 4 Ibid,. Martinez. 5
similarities and differences between how the Roosevelt and Bush military tribunals function as well as take a closer examination of the justifications for their utilization. The third chapter inspects the legal issues that emerged as a result of the way military tribunals were used to try terror suspects. Various Supreme Court rulings invalidated aspects of the military tribunals, ultimately necessitating Congressional action. The fourth chapter charts the reform efforts made by Congress and how these efforts fell short of rendering the use of military tribunals justifiable. The debate on military tribunals continues as President Obama deliberates on whether their utilization is justified. We will see that the way that military tribunals have been historically utilized is not justifiable, however, with careful reform, a balance can indeed be struck between national security and justice. 1 Ex Parte Quirin: The Foundation for Modern Tribunals At the tail end of the Nazi efforts in WWII, an event would occur that resurrected military tribunals, which had been out of commission since the Civil War. Eight Germans were assigned a mission to carry out various acts of sabotage on American soil in order to harm the US war effort. Although the US ultimately thwarted these efforts before any real harm was incurred, the attempts by these men revived an issue that has seldom emerged in our history: how does the US deal with invading enemy combatants, not in uniform (*non‐
state actors), who are operating outside the capacity of standard criminal and civil proceedings? President Franklin D. Roosevelt’s answer to this question was to create a military commission. The proceedings of the military tribunal for the eight saboteurs were nearly as sloppy as the men’s attempted attacks, leaving questions about the fairness and legitimacy of the decision. 6
Due in large part to the conduct of the proceedings, the saboteurs sought a writ of habeas corpus from civil courts in hopes of appealing the verdict issued by the military tribunal. In the end, the Supreme Court issued a controversial decision upholding the jurisdiction of the tribunal. In this chapter we will evaluate the aspects that made this case the subject of controversy and the questionable fairness of the military commission, which tried the men. “Operation Pastorius” Long before any German saboteurs ever reached the shores of the US, Hitler created a Sabotage Division to begin training future operatives. The espionage school’s headquarters were located in Hamburg, where trainees would learn to microphotograph documents, use secret ink, code and decode, transfer messages in Morse code, and be trained in other skills necessary to their missions.5 Preceding the formation of the famed ‘Nazi Saboteur’ ring, Germany had suffered heavy losses on the intelligence front. In a mere two years the Nazis lost thirty‐three US grounded spies thanks to a double agent working with the FBI.6 When Hitler received the news that more than thirty German spies had been arrested in the United States, he ordered the formation of an eight‐man crew to be known under code name, “Operation Pastorius,” after the famed German‐American immigrant Franz Daniel Pastorius.7 The eight finalists for the mission were: George Dasch, who led the 5 Louis Fisher, Nazi Saboteurs On Trial: A Military Tribunal And American Law. (Lawrence, Kansas: University Press of Kansas, 2003) p. 13. 6 Ibid., p. 10. 7 Ibid., pg. 17. 7
group, Ernest Burger, Heinrich Heinck, Richard Quirin, Edward Kerling, Hermann Neubaur, Werner Theil, and Herbert Haupt. The men studied and trained for several months preceding their mission. In addition to changing their names, each of the men studied maps of railroad systems and main terminal points, learned how to lay explosives, were trained in armed and hand‐to‐hand combat, and learned to read and write with the invisible ink which they used to communicate.8 As their final command prior to departure, they were ordered to remain in German uniform when they landed on the US shores, because if caught immediately, they would be treated as prisoners of war (POWs) as opposed to spies. Trained and with orders in hand, the eight men were ready to board the submarine to embark on their mission. Pulling ashore on the Atlantic coastline, it took just minutes for the group to run into its first sign of trouble. Coast Guardsman John C. Cullen approached Dasch and two others who were partially veiled in the morning’s heavy fog. Rather than overpowering the lone guardsman, Dasch and his men told Cullen that they were fisherman who had gotten lost. When Cullen insisted that the men come back to the station with him, Burger approached Dasch telling him something in German, provoking Dasch to yell, “You damn fool, why don’t you go back to the other guys?”9 With their cover seemingly blown, Dasch began to threaten Cullen. Ultimately Dasch offered the guardsman $300 to keep quiet, but the effort would prove futile. Cullen left for the station where he would immediately report what had transgressed. Burger meanwhile had taken a number of items from the submarine, carelessly leaving tracks in the sand 8 Ibid., pg. 22. 9 Ibid., p. 14. 8
which authorities found easy to trace. The other men, meanwhile, buried boxes on the beach containing supplies to use for their mission. The eight departed seemingly unscathed from the incident, however, their plot would quickly unravel. Four men made their way to Manhattan, where they checked in at the Hotel Governor Clinton and at the Hotel Martinique. Over dinner that night, according to testimony, Dasch and Burger began to discuss their lack of allegiance to the Nazi regime and their decision to not commit their acts of sabotage. The group appeared to be growing increasingly frayed as each questioned the resolve of their fellow man. It only took two days before Dasch’s resolve was broken. Before any major efforts were conducted to find the saboteurs, Dasch, as some of his compatriots had feared, turned to the FBI. On a Sunday evening, Dasch called the New York FBI office to notify them that he had arrived from Germany two days prior, but told them nothing else. It took Dasch another five days to reveal the sabotage plan to the FBI office in Washington. The Washington Post, electrifying the nation, revealed the story. Dasch made a longwinded confession that acted as the foundation for the government’s case in the tribunal. Prior to his confession, the government had little against the men other than the materials they uncovered at the beach. Dasch arranged a meeting where he told all in hopes of getting off the hook. At first, Dasch’s story sounded so fantastic that FBI agents found it hard to believe. The locations and plans of each man were detailed in Dasch’s confession, making it painless to take the remaining saboteurs into custody. Headlines read, “FBI SEIZES 8 SABOTEURS 9
LANDED BY U‐BOATS HERE AND IN FLORIDA TO BLOW UP WAR PLANTS.”10 Everything the government needed to build a winning case was laid at their feet. Authorities returned to the beach area where Dasch had alerted them to search, exactly where Cullen had encountered the saboteurs just a few days prior, finding a spot “that had been freshly dug up.” The boxes that the Germans buried were easy to find, buried a mere six inches under the sand. Taking the boxes back to the station, it was not hard to figure out that Dasch’s story was in fact true. From time‐bomb mechanisms, pencils and pen detonators, civilian and military clothing including a cap with a swastika, TNT and other mechanisms that they found in the boxes all went toward convicting the men. With the government’s case against the men already falling into their lap, administration officials were confident it would be an effortless conviction. The final and most crucial aspect the government needed was the rest of the men themselves, and with the details provided by Dasch, their apprehension proved equally effortless. The Saboteurs are captured: How the Decision to Use Tribunals Came to Be The FBI moved in quickly after Dasch’s confession. The New York Times published the following in their account of the event, “before the men could begin carting out their orders the FBI was on their trail and the roundup began. One after another they fell into the special agents’ net”.11 There was no mention of the information Dasch provided in any of the news reports or press releases. The Roosevelt administration was deceptive with this inaccurate press release. The administration wanted to take credit for the capture of the 10 Ibid., p. 38 11 Ibid., p. 39. 10
sabotage ring; however, to be able to take credit for the capture, the information had to be carefully guarded. Competition among various government agencies for credit began to heat up. There was no acknowledgement of Coast Guard presence in the official report, or record of Dasch’s confession initially. Because a civilian trial would allow the public to see that Dasch had tipped them off, Roosevelt began to explore the prospect of utilizing an alternate method to try the men. This is when the idea for trying the men outside of the civil justice system first emerged. The two alternatives to a civilian trial that were discussed were courts‐martial and military tribunals. While both would fall under the jurisdiction of the military, the procedural rights of the defendants in courts‐martial go far beyond those afforded under military tribunals. The lack of firm rules regulating tribunals allowed for significant differences to exist in comparison to civilian courts or courts‐martial. The Decision to Use Tribunals During the FBI’s negotiations with Dasch, agents assumed that the men would be arraigned before a judge in a civilian criminal court. In exchange for a guilty plea and the information about the other saboteurs, the FBI said they could set the wheels in motion for a Presidential pardon. The deal that the FBI cut Dasch may have contributed largely to the decision to use military tribunals. President Roosevelt wanted no part of letting a would be German saboteur off the hook so easily.12 12 Ibid., p. 44. 11
There were several factors playing into the decision to use military tribunals. First of all, the administration wanted to send a message that the executive branch had a vast capacity to capture saboteurs and would punish intercepted enemies severely so as to discourage future attempts. Tribunals enabled the administration to protect the fact that the saboteurs had been caught as a result of Dasch’s confession, not by their savvy intelligence agencies. If Dasch’s confession were released to the public, it would delegitimize their claim of ubiquitous surveillance. Secondly, Federal statute limited sabotage cases to a maximum thirty‐year penalty without chance of capital punishment. More vital to the government’s decision was the consideration that the men had not actually committed any act of sabotage. Herein lies an important distinction in this case; because the men had not actually committed any act of sabotage, the government would have been limited to charging the men with conspiracy. Federal statute on conspiracy carried a maximum sentence of three years imprisonment. With Federal law on conspiracy establishing such a limited maximum sentence, in this respect civilian courts would not issue a severe punishment. The men’s sentences would have been served before the end of the war, allowing for a future attempt. Administration officials concluded, “Maximum permissible punishment for these offenses would be less than it is desirable to impose”.13 The tribunals allowed the government to mete out the death penalty without regards for national statutes. The other major consideration in the decision to utilize tribunals was the blood lust and attitude of the nation at the time. Still in the heat of the war, the summer of 1942 might 13 Ibid., p. 47. 12
not have been the best time to try to convince the public a fair trial was the best course of action. Even the judges who ought to be impartial in the case could not temper their anger for these men; Justice Frankfurter in his memoirs expressed his distaste for the fact that the Court was even hearing the case during wartime, “What in hell do you fellows think you are doing? Haven’t we got enough of a job trying to lick the Japs and the Nazis without having you fellows on the Supreme Court dissipate the thought and feelings and energies of the folks at home by stirring up a nice row as to who has what power when all of you agreed that the President has the power to establish this Commission”.14 Although the political climate of the time was clearly partial to nationalist sentiments, the state of war does not justify the abandonment of constitutional safeguards protecting civil liberties. Before the trial began, the question of jurisdiction had to be settled. This was the first area where the courts would fail in their duty to uphold standards of justice. The Milligan Complication The FBI initially presumed that the eight Germans would be arraigned in a civil court, having heard no discussion of the prospect of a military tribunal. The precedent of the Civil War case Ex Parte Milligan had to be resolved before Roosevelt could explore the possibility of using tribunals. Not having been in use since the civil war, military tribunals seemed to be an unlikely method of trial. In order to prosecute the German saboteurs, the Roosevelt administration had to first demonstrate that the men did not have to be tried in civil courts, which the Milligan precedent held were to be used unless not functioning. 14 Ibid., p. 121. 13
The question in the Milligan case was whether or not the writ of habeas corpus could be suspended in times of emergency. Lambdin P. Milligan was a U.S. citizen from Indiana, who was charged and tried for conspiracy under a military tribunal. After being tried and found guilty, Milligan presented a petition of habeas corpus, insisting that he was entitled to a trial by jury in a civilian court. The Court held that the application of military tribunals to citizens was unconstitutional where civilian and federal courts were open and operating. President Lincoln had no power to suspend the writ for a US citizen while the courts were still functional. Trials by military tribunals are only constitutional when no other power than military exists to conduct a trial. The only valid justification for tribunals’ utilization is when circumstances render them ‘absolutely necessary’. In the Quirin case, it was concluded that enemy aliens who came through national lines out of uniform for the purposes of committing acts of sabotage did not require the benefits of civil trials. It was historically justifiable to deny the benefits of the courts to enemies; however, given the Court’s holding in Milligan, it seemed that tribunals were intended to be a last resort. The spirit of the law was to limit the exploitation of tribunals, but because the letter of the law was written with reference to U.S. citizens, the German saboteurs were out of luck. Throughout the trial for the eight saboteurs, there was little done to preserve the appearance of impartiality. Formation and Features of Roosevelt’s Tribunals Roosevelt’s order creating military tribunals gave the executive unprecedented power to create rules and features that would give the prosecution the power the administration thought useful. These specific alterations from the traditional justice system 14
have generally been acknowledged to come at the expense of the accused, but have been defended as practical and still in line with other standards of justice. We will look at the alternate rules from the civilian courts and courts‐marital proceedings and how that may have affected the process. Evaluating the benefits and harms of these alterations will shed light on the practicality of their utilization. In Roosevelt’s order creating the military tribunals, Proclamation 2561 read, “All persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war, shall be subject to the law of war and to the jurisdiction of military tribunals” (The Presidency Project)15 The citation of the ‘law of war’ in the Roosevelt proclamation was a critical distinction to include. Had the proclamation read “Articles of War,” the tribunals would have been bound to the procedures established by Congress and acted more like a court‐
martial proceeding. Because of the more vague nature that the term ‘law of war’ represents, a broader spectrum of principles and customs developed over time in international law were at the administrations disposal. By mixing of the Articles of War and Law of War, “The prosecutors thus combined a mix of offenses that were nonstatutory (law of war) and statutory (Articles of War). The distinction here is fundamental. In federal law, the creation of criminal offenses is reserved to the legislative branch, not to the President. The Constitution vests in Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences on Land and Water.” By enacting the Articles of War, Congress defined not only the procedures but also the 15 Peters , Gerhard. "The American Presidency Project". 2/25/10 <http://www.presidency.ucsb.edu/ws/index.php?pid=16281>. 15
punishments for the field of military law. Charging individuals with violations of the “law of war” shifts the balance of power from Congress to the Executive.”16 By the careful selection of language, “A military tribunal could thus pick and choose among the principles and procedures that it found to be compatible.”17 This was the foundation by which the administration established the right to create the procedures for the military tribunals. As for the procedures that were selected for the trial, “Only eight lines referred to rules of procedure: disallowing peremptory challenges, allowing one challenge for cause, and then this concluding language: ‘In general, wherever applicable to a trial by Military Commission, the procedure of the Commission shall be governed by the Articles of War, but the Commission shall determine the application of such Articles to any particular question.’”18 The commissions could essentially make up the rules of the trial as they went along. There were numerous key features that distinguished military tribunals from what a trial would have been like in a civilian court or under strict application of the “Articles of War”. Attorney General Francis Biddle worked with Roosevelt in establishing procedures that were largely in line with the Articles of War. However, the procedures differed in a few key ways. The major feature changes included: lack of an ability for defendants to seek review, the rules guiding evidence and procedure, standards for conviction, the right to counsel, and the media’s access to the trial. The Roosevelt administration felt these changes were vital to our national security and ability to punish these individuals appropriately. However, we will evaluate both the benefits and drawbacks to these changes. 16 Op. cit., Fisher, Nazi, p. 59. 17 Ibid., p. 51. 18 Ibid., p. 57. 16
Denial of Judicial Review The provision that restricted access for the eight men to appeal the decision or to seek access to civilian courts was one of the more controversial aspects of Roosevelt’s declaration. The second paragraph of the order read, “such persons shall not be privileged to seek any remedy or maintain any proceeding directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States.”19Roosevelt was firm in his stance on the denial of judicial review, “I won’t give them up….I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?”20. Review by a federal court or any other body to provide a check on the conduct of the trials was denied. The rationale for the denial of such access was to prevent repeated litigation of the case. The goal was to convict the men quickly and not create a drawn out process diverting the nation’s attention from the war effort. Furthermore, Biddle argued that, “It had long been traditional to deny our enemies access to the courts in times of war.” 21 Critics of military tribunals at the time were quick to point out that even in courts‐
martial defendants had access to independent review. Without the ability to have a higher court review the case to ensure it was conducted fairly, any foul play in the initial trial has no checked. Although it is always desirable to have those who are guilty of crimes to be brought to justice quickly, shoveling a case through with the presumption of guilt is not in line with the principles of our justice system. The denial of judicial review fundamentally 19 Ibid., p. 51. 20 Ibid., p. 52. 21 Ibid., p. 50. 17
calls into question both the fairness of proceedings as well as the certainty of justice being served in the end. The justification that it had been ‘tradition’ to deny access to judicial review without providing further warrants leaves much to be desired. It begs the question, why is it desirable to have a justice system for your citizens and another for your enemy? Is that in fact justice? Throwing away principles of justice in hopes of conviction fundamentally calls into question the validity of that conviction if it is achieved. In order for military tribunals to be justified, the presence of an appeals process would be essential. Evidence and the ‘Reasonable Man Clause’ In civilian trials, rules for the admission of evidence are bound to a high standard of authenticity and have many provisions to protect the defense. Military commission members themselves were responsible for deciding what could be admitted as evidence. Allowances were made for hearsay testimony, physical evidence had a lower standard for authentication, and there was a provision for evidence to be allowed if judged to be of probative value under the ‘reasonable man clause’. Also harming the defense was the fact that evidence the government had to share with the defense was under much looser guidelines. The defense was provided access only to the “extent necessary and reasonably available as determined by the Presiding Officer,”22 in a given case. This allowed for the prosecution to not only limit the defense’s ability to construct a plan for how it wanted to approach the trial, but in practice the rule also functionally kept the defendants in the dark about what was occurring in the trial. 22 Ibid., p. 27. 18
Beyond the defense being blind to the grounding of the accusations with reference to evidence, the types of evidence that were allowed into the trial were limited only by what the members of the commission thought was ‘reasonable’. Although the precise meaning of this provision was worked out over the course of the trial, this represented a stark departure from the standards of evidence present in the Articles of War and civil proceedings. The ‘reasonable man clause’ was defined as, “(evidence that) would in the opinion of the President of the Commission, have probative value to a reasonable man.”23 The importance of the omission of evidence standards cannot be overstated, as we will see how the lack of standards can be instrumental in the outcome of a trial. Again with this provision we find that the defense is placed at a significant disadvantage, yet no great measure of security is gained. A more equitable standard for evidence admittance would be necessary to ensure the fairness of tribunal proceedings. Conviction A highly valued facet of our justice system is our standard for conviction. In civilian criminal trials, all jurors must agree beyond a reasonable doubt that the defendant is guilty of the accused crime. This safeguard was designed to ensure that justice is served by requiring a high level of agreement amongst members of the jury so as to prevent a small majority from rendering a verdict with a lower level of certainty. The military order lowered the number of votes necessary to convict from unanimity to a concurrence of “at least two‐thirds of the members of the Commission present shall be necessary for a 23 Ibid., p. 53. 19
conviction or sentence”. 24 The same standard of two‐thirds concurrence was the level necessary to sentence the men to death. The goal of altering the standard for conviction was to allow fewer people to slip through the system that are guilty. By requiring fewer members of the commission to agree, there was less of a burden on the prosecution to convict the men. In practice this policy will end up convicting more people, however, it also increases the risk of convicting the innocent. Two men on the seven man panel could believe the men innocent and the court could still impose the highest punishment possible: death. Institutional Bias Given the fact that the individuals trying the saboteurs in the commission were all members of the military, there could be a serious conflict of interests. Since the President named the judges trying the case, and the President was the only authority that could approve or deny the findings of the proceedings, it seemed the men were on a one‐way street toward conviction. Military officers sitting as judges take orders from the President, who ordered the formation of the trial. The likelihood for bias in the proceeding because of the nature of these facts alone would seem reason enough to utilize an alternate method of trial. When you are trying your sworn enemy and your commander is calling for a prosecution of this enemy, a conviction regardless of the facts seems overwhelmingly likely. If better defined parameters for jurors were established, the risk of conspiracies to convict could be mitigated. 24 Ibid., p. 53. 20
Kenneth Royall, who was appointed to defend the saboteurs, remarked in the trial to these ends, “To any degree the feeling that the circumstances under which the Commission is appointed would make it difficult or embarrassing for him to reach a judgment in favor of the defendants in the event the evidence should so indicate.” He continued, “The fact that this trial is being conducted in time of war would in any manner incline the commission to deal more harshly with the defendants in the matter of conviction or sentence than they would if it were in time of peace.”25 Further compounding the question of bias in the case was the denial of challenges for cause, which would allow the defense to strike judges whom they felt, might hold biases against their clients. The hands of the defendants were tied. Secrecy and The Media As discussed earlier, one of the reasons that Roosevelt wanted to use tribunals in the first place was because it allowed the trial to be conducted in secret. Unlike civil trials or courts‐martial, military tribunals had the option of being closed to the public. The official reason for the trial being held in secret was that it would be “extremely dangerous” to have the press in “at any stage of the taking of the evidence because there were certain matters which would necessarily come out which ought not be in the hands of anybody outside the officials of the trial.”26 In the end it was decided that by Roosevelt that, “The sessions will be closed, necessarily so, due to the nature of the testimony, which involves the security of the United 25 Ibid., p. 57. 26 Ibid., p. 54. 21
States and the lives of its soldiers, sailors and citizens.”27 The trial occurred in the Justice Department building in a completely sealed room with soldiers patrolling the outside. In this particular trial against the saboteurs, the arguments for the nature of the testimony involving national security may be overblown. That said, outside of the official statement, there were practical reasons for wanting the details of the case to remain sealed. Being that our nation was already in the midst of wars both in the Pacific and European theatres, it is understandable that Roosevelt would have wanted to avoid what could have been a major distraction. The easiest way to keep the story out of the headlines was to not give the media anything to write about. Another argument that would not have come out in an official statement was the national security concern. From a strategic standpoint, if Germany and Japan believed that their sabotage efforts were being easily thwarted, it may cause them to rethink espionage efforts. By keeping the trials closed, the official line that our FBI sniffed them out could be credibly maintained. Evaluating the situation while being mindful of the war effort makes the restriction of media sensible in this situation. The Trial Appointed to defend the saboteurs were Col. Carl L. Ristine, who was appointed to represent Dasch, as well as Col. Cassius M. Dowell and Col. Kenneth Royal to defend the other seven. The government brought the following charges against the eight men: “Specification 1. (Violation of the Law of War) “In that, during the month of June 1942, Edward John Kerling (and others) being enemies of the United States and acting for and on behalf of the German 27 Ibid., p. 54. 22
Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States, along the Atlantic Coast, and went behind such lines and defenses in civilian dress within zones of military operations and elsewhere, for the purpose of committing acts of sabotage, espionage, and other hostile acts, and, in particular, to destroy certain war industries, war utilities, and war materials within the United States.” Specification 2: (Violation of the 81st Article of War) “In that, during the month of June 1942, Edward John Kerling (and others) being enemies of the United States and acting for and on behalf of the German Reich, a belligerent enemy nation, appeared, contrary to the law of war, behind the military and naval defenses and lines of the United States, within the zones of military operations and elsewhere, for the purpose of committing or attempting to commit sabotage, espionage, and other hostile acts, without being in the uniform of the armed forces of the German Reich, and planned and planned and attempted to destroy and sabotage war industries, war utilities, and war materials within the United States, and assembled together within the United States explosives, money, and other supplies in order to accomplish said purposes.” Specification 3: (Violation of the 82nd Article of War) “In that, during the month of June 1942, Edward John Kerling (and others) being enemies of the United States and acting for and on behalf of the German Reich, a belligerent enemy nation, and without being in the uniform of the armed forces of that nation, relieved or attempted to relieve enemies of the United States with arms, ammunition, supplies, money and other things, and knowingly harbored, protected and held correspondence with and gave intelligence to enemies of the United States” Specification 4: (Conspiracy to commit all of the Above Acts)28 Before the defense addressed any of the above charges brought against the men, they pursued the questions about jurisdiction and due process. Royall, a few days before the beginning of the trial wrote to President Roosevelt questioning his authority to form the tribunals, “there is a serious legal doubt as to the constitutionality and validity of the Proclamation and as to the constitutionality and validity of the Order.”29 The defense thought it should have the opportunity to test the constitutionality of the proclamation and 28 Ibid., p. 61‐63. 29 Ibid., p. 64. 23
order before the proceedings began. Royall said the creation of the commission “is invalid and unconstitutional,” and in citing Ex Parte Milligan stated, “the civil courts in the District of Colombia were open and questioned the jurisdiction of any court except a civil court.”30 The issue of the President’s authority to order the tribunals was ultimately resolved in the Supreme Court. The defense did not have the opportunity to try the validity of the order before the tribunal had reached a verdict. After being denied the opportunity to test whether or not the trial itself was legally grounded, the defense began hammering away at the procedural elements existent under the order. Their first target was the denial of judicial review, arguing that it would be a “mistake” to prohibit the ability to seek redress in civil courts because, “it might tend to give the public impression that the prisoners are not being given a fair trial.”31 In addition to having the appearance of being unfair, the question of constitutionality again arose. Royall announced to the court that he was preparing papers for an application for a writ of habeas corpus to test whether the men retained certain rights of due process. The tribunal officers were not receptive to hearing the defense’s arguments about the procedural injustices despite Royall’s best efforts. With the trial moving forward and time beginning to run out for the defense, Royall began contacting Supreme Court Justices in hopes of having their case heard. For the remainder of the trial, each of the saboteurs took the stand one by one. Dasch and Burger professed they had joined the sabotage ring in order to get out of Germany and find safety 30 Ibid., p. 56. 31 Ibid., p. 65. 24
in the US.32 Heinck also claimed to be seeking asylum in the US as he, “liked the liberty of this country, the freedom over here, what we did not have in Germany.”33 These arguments had little impact on the military court. Each of the eight men had lived in the United States before choosing to return to the Fatherland. In order to return to Germany the men had to travel through Japan and Russia before reaching Berlin. The immense effort necessary to return made their statements difficult to sell. Others tried different tactics to exonerate themselves. Both Kerling and Theil stated that their signed confessions should be invalidated because the FBI “mistreated them with slaps and hair‐pulling”34 But these efforts fell equally flat. When it began to appear that the saboteurs’ testimony was only harming their case, the defense decided to go in a different direction. Royall and Dowell’s next approach was to see if they could find traction with the fact that none of the planned attacks had been carried out. Royall argued that the men did not deserve the death penalty, “They did not hurt anybody. They did not blow up anything.”35 He argued there was a clear distinction between what someone intends to do and what he actually does. “Whoever shoots and kills someone can be put to death. If the person shoots and misses, he will get a few years. If a person buys a pistol with the intent to kill, he might be fined $50. Many people, he said, have wished someone dead, but the act of carrying out murder requires much more hardness, much more criminality, much more depravity.” He said because they had not make preparations in the states that there was still doubt whether any of the eight men had the capability to carry out sabotage. “Let us not let the 32 Ibid., p. 69. 33 Ibid., p. 69. 34 Ibid., p. 69. 35 Ibid., p. 71. 25
fact of war absolutely change the character of what they have done. Give it weight, yes; but do not let it destroy our entire perspective of just exactly what happened.”36 The fact that the men had been captured before any criminal act was committed gave the defense some room. Royall argued that Congress had already enacted statute “with the war fully in view, it proposed a maximum penalty in time of peace and a maximum penalty in time of war.” Congress set the maximum penalty in wartime at thirty years. Although the men had planned to commit acts of sabotage, they were not caught in the act, nor had they killed, damaged or destroyed anything. It became increasingly clear at this point that the tribunal had no intensions of judging the facts of the case. By the end of the trial, whether or not any act of sabotage had been carried out, we were still at war and the military officers were not immune to that fact. The more important question on the minds of the officers by the end of the trial was, “Should they be shot or hanged?” One of the officers recommended they should be hanged, because death by firing squad would be, “too honorable a death.”37 As for Dasch and Burger who had been cooperative with the FBI, the administration decided to exercise leniency, “The Administration reasoned that mercy for the two would encourage members of other espionage, sabotage, or fifth‐column groups to turn against their colleagues and receive leniency.”38 It should be noted that the sole consideration for the administrations leniency was national security, not for any sense of equity. 36 Ibid., p. 72. 37 Ibid., p. 77. 38 Ibid., p. 91. 26
At the end of the trial, despite the government failing to prove that the men had done anything more than plan an attack, the remaining six were sentenced to death. From start to finish, the trial was in session for just nineteen days before the verdict of death was reached for the six.39 The administration’s goal had been reached; the saboteurs were executed, the administration gained political points for a quick, desirable verdict, and there were no substantial hindrances on the path to conviction. As we saw in multiple instances, the deviations from civilian court standards such as the restrictions on evidence available to the defense and the inability to seek recourse in appellate courts each result in a less fair and complete proceeding. Each of the changes in the standards and procedures for the trial harmed the defense. Although reasons for these alterations exist, the ways in which the changes play out are undesirable because they ultimately counteract the goal of our justice system. When we sacrifice the rule of law and protections afforded to the defense in order to gain convictions, not only do we invite wrongful convictions, but also more importantly, we bruise our credibility on a world stage. The final chance for the saboteurs was their Supreme Court case challenging the jurisdiction of military tribunals. The Supreme Court Case The Supreme Court decided to limit its findings to the issue of whether tribunals had jurisdiction in the case. If the tribunal’s jurisdiction in the case were denied, the government would have to take the case to a civil court and seek indictments from a federal grand jury. In such a circumstance, none of the men would be subject to the death penalty 39 Ibid., p. 84. 27
and sentencing would be limited by existing federal statute. Clearly, there was still much at stake. Dowell and Royall first argued that the men’s actions did not constitute a violation of the law of war, “the defendants had not committed any act in a zone of military operations, and no proof existed of an effort to obtain military information.”40 Because tribunals had historically been utilized only to try violations of the law of war, the defense thought they might be able to gain leverage with this point. Furthermore, even if the Court found that the men’s actions did constitute a violation of the law of war, because their crimes were defined under federal statute, the use of military commissions was similarly invalid, “To the extent a crime existed under the law of war, it would include the offenses of sabotage and espionage, which are treated in the statutes enacted by Congress and are ‘triable by the civilian courts.’ Charge IV, on conspiracy, was also covered by a congressional statute and ‘is not triable by a military commission.’”41 Since civilian courts were in no way incapable of hearing the case and the crimes in question were defined by federal statute, the defense argued that there was no justification for using tribunals. Despite their best efforts, the Supreme Court was not persuaded. The prosecution argued that the men had no right to sue in civilian courts because the writ of habeas corpus was never intended to apply to armed invaders sent in a time of war, and certainly not for non‐citizens. Biddle contended that because the men intended to inflict harm upon our nation, the Fifth Amendment right to due process was inapplicable, 40 Ibid., p. 150. 41 Ibid., p. 151. 28
“The very existence of the Nation can hardly be in a position to claim constitutional rights, privileges, and immunities from the Nation which they seek to destroy.”42 The Court’s Decision The Court’s decision was simple and founded on the basis of three considerations: 1) the President has the inherent authority to create military tribunals, 2) this authority could not be regulated by Congress, and 3) this power was by virtue of his power as Commander‐in‐Chief. The Court upheld the tribunal’s jurisdiction holding that “the military commission was lawfully constituted and that the defendants were held in lawful custody and had not shown cause for being discharged by writ of habeas corpus.”43 The Court left the President’s right to create military commissions unambiguous and provided the foundation for the future utilization of tribunals. 2 Military Tribunals Revived for the War on Terror On November 13, 2001, President Bush issued Military Order 1 that set out procedures for military commissions to be used against the perpetrators of the terrorist attacks of 9/11. The Bush administration made it clear from the outset that they intended to try the terrorists as war criminals, “The September 11th attacks were acts of war. The people who planned and carried out these attacks are not common criminals; they are foreign aggressors, vicious enemies whose goal was and remains to kill as many innocent 42 Ibid., p. 156. 43 Ibid., p. 170 29
Americans as possible.”44 The administration decided that military tribunals offered numerous advantages over civilian courts and were appropriate for the circumstances. In Senate Congressional hearings, the tone coming from administration officials was firm and reflected a great concern for our national security, “They are and remain unlawful belligerents ‐‐ adversaries who attacked our nation in contravention of the rules of war. And the president has made it clear that we will hunt them down wherever they hide. When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country's disposal for doing so. One of those tools is the establishment of military war crimes commissions.”45 The aim of the policy was to create a system that could try foreign terror suspects domestically or abroad in secret, without many of the constitutional protections given to defendants in the federal court system that may lead to extended litigation and unwarranted acquittals. Vice‐President Dick Cheney was one of the strongest proponents of the action, "The basic proposition here,” he explained, “is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women and children, is not a lawful combatant."46 As he argued, "They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process . . .. We think it guarantees that we'll have the kind of treatment of these individuals that we 44 Wolfowitz, Paul. "Center For National Security Studies ". CNSS. 3/10/10 <http://www.cnss.org/wolfowitzstmt.htm>. 45 Ibid., Wolfowitz. 46 Savage, David. "Bush Order for Military Tribunals Gets Several Thumbs Down". Los Angeles Times. 3/10/10 <http://pqasb.pqarchiver.com/latimes/access/90100732.html>. 30
believe they deserve."47 Despite the cautionary lessons that could have been learned from the Quirin trial, the Bush administration regarded the case as ‘most apt precedent’48 for the formation of their tribunals. The questionable fairness of past military tribunals proceedings served as little deterrence to the administration, which was determined to forge on. The decision to use military tribunals was said to be a better alternative to using civilian courts for a variety of reasons: they would allow for protection of state secrets, charges would be resolved more efficiently, there would be no lengthy appeals processes, and potential issues associated with federal court trials would be avoided. The nation was largely mobilized in favor of the Bush administration’s efforts to combat terrorists with whatever means ‘necessary’. With the attacks of 9/11 still fresh in the minds of most Americans, concerns for rights afforded to terrorists were afterthoughts. Though many were willing relinquish traditional legal procedures to be kept safe from terrorism, critics of military tribunals remained. Numerous members of Congress in response to the military order voiced concerns. Michigan Congressman John Conyers described the order, “a civil rights calamity.”49 Longtime Congressman Dennis Kucinich, D‐
Ohio, harkened back to Benjamin Franklin contesting, “We should never be so fearful, as to 47 Ibid., Savage. 48 Op. cit., Fisher, Nazi Saboteurs p. 171. 49 Barr, John. "Lawmakers criticize Bush's order for military tribunals". CNN. 3/15/10 <http://archives.cnn.com/2001/US/11/16/inv.tribunals/index.html>. 31
think somehow we can gain a great measure of security by being willing to set aside the Bill of Rights or any other hallowed legal principle that forms the bedrock of our society."50 We will look at the similarities and differences between President Bush and President Roosevelt’s military orders, how these procedures affected trials for the accused, and the justifications as well as the concerns related to the usage of military tribunals in order to determine which side of the argument was winning the debate. Similarities and Differences Between Military Orders In many ways the language in President Bush’s military order mirrored the language used in President Roosevelt’s order in 1942.51 The procedures outlined in the orders led to similar functioning for tribunals in many respects. The standard for conviction remained at a two‐thirds majority of officers: 6) Conviction only upon the concurrence of two‐thirds of the members of the commission present at the time of the vote, a majority being present; (7) sentencing only upon the concurrence of two‐
thirds of the members of the commission present at the time of the vote, a majority being present52 To the administration’s credit, tribunals constituted under President Bush’s military order required a unanimous vote for the death penalty, whereas only a two‐thirds majority was necessary in President Roosevelt’s tribunals. Although it was a step in the right direction to increase the standard necessary to impose death, by retaining a two‐thirds majority to convict, the administration fell short of standards in our civilian and military 50 "Lawmakers criticize Bush's order for military tribunals". CNN. 3/10/10 <http://archives.cnn.com/2001/US/11/16/inv.tribunals/index.html>. 51 Op. cit., Fisher, Nazi Saboteurs, p. 174 52 Bush, George. "Military Order of November 13, 2001". Federal Register. 2/15/10 <http://www.fas.org/irp/offdocs/eo/mo‐111301.htm>. 32
justice systems. In civilian criminal trials, unanimity is always required for conviction. And although lower than the civilian system, even courts‐martial require a three‐fourths majority agreement amongst jurors. The lower threshold for conviction used by military tribunals increases the chances for a defendant to be wrongly convicted. The denial of judicial review was also retained in the Bush military order, which stated: [Defendants] shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal53 Since military tribunals only require between three and seven officers to preside over a case, few hands held absolute power over the fate of the accused. Critics of military tribunals often take greatest objection to the omission of judicial review. Any claims related to fairness are unverifiable because proceedings are governed solely under executive branch authority; the Secretary of Defense is responsible for naming officers presiding over tribunals, as well as jurors on review panels, and the President has the final authority to review cases. With no independent body to provide a check on the court’s findings, the trials represent the full legal process. The ‘probative value to a reasonable man’ clause was also used in both orders: (3) Admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding 53 Fisher, Louis. Military Tribunals And Presidential Power: American Revolution To The War On Terrorism. Lawrence, Kansas: University Press of Kansas, 2005. P. 169. 33
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 person54 The only change being “probative value to a reasonable person” under Bush’s proclamation. Evidence available to the defense was restricted to what was, “reasonably available as determined by the Presiding Officer.”55 Military tribunals had far more inclusive rules of evidence. It was argued that this flexibility was critical, since in wartime it may be difficult to establish chains of custody for documents or to locate witnesses.56 Military commissions allowed admittance of all probative evidence, including evidence obtained under conditions of war. Rules governing the admissibility of evidence in civilian courts are designed to ensure that the evidence presented is correct and would not lead to an inaccurate conclusion. By allowing standards for evidence to be dictated at the discretion military officers as opposed to regulations like those found in our civilian courts, the administration was inviting less certain verdicts. Another similarity between both military orders is the restriction concerning legal representation. Upon charges being filed, the accused, regardless of their wishes, had a military lawyer appointed to defend them, ‘at government expense.’57 While the concept that the government must provide the defendant the right to council was maintained, it fell short of what we have come to expect in our civilian courts. In civilian courts, if the defendant is unable to pay for a private attorney, one is supplied at the government’s expense. Under tribunal rules, a defendant has access to a 54 Op. cit., Bush. 55 Ibid., Bush. 56 Op. cit., Wolfowitz, Center For National. 57 Op. cit., Bush. 34
civilian attorney only if it comes at their own expense. Further complicating the prospect of gaining civilian representation was the government’s regulation that, “all civilian lawyers must have security clearances and do their work at the tribunal’s site (Guantanamo).”58The restrictions imposed under these rules limited the defendant’s ability to gain civilian representation. With military representation, defendants had neither the assurance that their representative was working solely in their interests, nor the opportunity to work with an attorney independent of the military. The way military tribunals were used in the ‘war on terror’ was vastly different than in any historical precedent. Procedures allowed for prisoners to be held indefinitely while cases were being constructed. If a detainee was designated an, ‘enemy combatant’, virtually all rights were surrendered. As an ‘enemy combatant’ the government could hold an individual, “incommunicado for as long as necessary in an effort to obtain information about past and future terrorist operations.”59 So long as charges were not filed, detainees could be held in military detention indefinitely. This was the exact circumstance that allowed Salim Hamdan, whom we will discuss further in chapter three, to be held at Guantanamo Bay for five years without charges. Speedy trial rules in civilian courts render indefinite detention without charges illegal. The Intended Functions and Justifications for Tribunals 58 Wang, Tova. "The Military Tribunals Debate". The Century Foundation. 2/17/10 <www.tcf.org/Publications/HomelandSecurity/wang‐tribunals.pdf>. 59 Op. cit., Fisher, Military Tribunals. p. 210. 35
The Bush administration sold the decision to revive the institution of military tribunals as ‘appropriate for the circumstances’ and called them an ‘indispensible tool’60 in fighting the terrorists. The administration claimed that the utilization of tribunals would protect our national security interests while retaining our national principles for justice. We will look at statements from different members of the White House legal counsel to gain insights into the intensions and justifications for forming military tribunals. Protecting national security interests was the most significant justification for forming tribunals. President Bush justified his military order forming tribunals saying that the enormous threat of terrorism necessitated the response, "Having fully considered the magnitude of the potential deaths, injuries and property destruction that would result from potential acts of terrorism against the United States and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest and that issuance of this order is necessary to meet the emergency."61 The military order gave the government many new tools to fight the war on terror. The increased abilities to gather and protect intelligence and keep terrorists off the battlefield were key functions that the order facilitated. Associate Attorney General J. Michael Wiggins advocated for the utilization of tribunals with many different considerations in mind, "Detention of enemy combatants serves the vital military objectives of preventing captured combatants from rejoining the conflict and gathering 60 Gonzales, Alberto. "Martial Justice, Full and Fair". The New York Times. 1/26/10 <http://www.nytimes.com/2001/11/30/opinion/30GONZ.html?pagewanted=1>. 61 Eaves, Elisabeth. "President Bush Signs Executive Order Authorizing Military Tribunals". Human Constitutional Rights. 2/15/10 <http://www.hrcr.org/hottopics/tribunal.html>. 36
intelligence to further the overall war effort and to prevent additional attacks."62 With the uncertain nature of the ‘War on Terror’, having a place like Guantanamo Bay to send ‘enemy combatants’ was a major benefit. Wiggins also claimed that they could hold detainees as long as they wanted, "It's our position that, legally, they can be held in perpetuity."63 The practical benefit of having the equivalent to a prisoner of war camp where individuals can be held indefinitely was substantial. Real POW camps have rules that would prevent the conduct seen at Guantanamo. Any individual that the administration felt presented a threat could be sent to Guantanamo until they could build a case, or the threat was nullified. Advantages Over Federal Trials In addition to the national security interest playing into the decision, tribunals were also promoted as a better option than using our civilian court system for a variety of reasons. One such advantage was that they would avoid the potential issues related to using federal courts. White House Counsel Alberto Gonzales pointed out that tribunals would spare judges and jurors the ‘grave risks’ that would be associated with trying terror suspects. Former federal prosecutor Ruth Wedgwood concurred with Gonzales’ opinion contesting that it would be logistically impractical to have, “carloads of federal marshals, rotated every two weeks, to protect each juror for the rest of his life.”64 For high‐level terrorists, this is one of the better‐founded advantages military tribunals present because such logistical issues would be avoided. Since military tribunal proceedings would be 62Babington, Charles. "Critics of Guantanamo Urge Hill to Intervene". The Washington Post. 2/15/10 <http://www.washingtonpost.com/wp‐
dyn/content/article/2005/06/15/AR2005061500823.html>. 63 Ibid., Babington. 64 Op. cit., Fisher, Military Tribunals, p. 171. 37
conducted in secret at the remote locale of Guantanamo Bay, there would be little concern for the safety of those presiding over trials. Although it is true that certain individuals would present serious security challenges, the majority of suspects would be unlikely to garner enough notoriety to warrant intense safety precautions. Another cited advantage over federal trials was the increased ability to protect intelligence: “They allow the government to use classified information as evidence without compromising intelligence or military efforts.”65 Since jurors in military commissions could deny the defense access to sensitive evidence, it allowed for the use of classified information without endangering sources and methods. In effect, tribunals allowed the prosecution to bring all relevant evidence against the accused. In a civilian trial, prosecutors could be faced with a situation where they may have to use classified information that could expose how the US monitors terrorist activities and communications in order to secure a conviction. Civilian prosecution could potentially be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national security. What may be all too easy to overlook is that many of the advantages tribunals offered came at the expense of the accused. By restricting what evidence the defense had access to, it would also limit the defense’s ability to construct a credible defense. In civilian trials, the restriction of evidence available to the accused would never be allowed. It should be duly noted that in tribunal proceedings, evidence standards allowed for the admittance 65Op. cit., Gonzales, Military Justice. 38
of coerced statements, so long as it was deemed to be of probative value. Here again, our civil court system has absolute restrictions against the admittance of coerced statements. A further purported advantage was that tribunals would prevent lengthy appeals. “They can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post‐trial appeals.”66 This benefit came by nature of the denial of judicial review. Again, this advantage for the government came at the expense of the accused. While it is true that military tribunals prevented extended pre‐trial and post‐trial appeals, this was only because access to appellate courts was absolutely denied. The advantage of quickly resolving cases did not come because trials were being resolved more efficiently and fairly, thus rendering it unnecessary to not afford access to appeal. Quite to the contrary, not only were lower standards for conviction used, (rendering trials less fair) the only access to appeal was to another military‐controlled appeals process. Moreover, the statement that tribunals allowed them to ‘dispense justice swiftly’ was hardly in line with reality. As we established earlier, it was the administration’s position that detainees could be held indefinitely. Compared to the speedy trials we have come to expect in our civil court system, the fact that detainees at Guantanamo were held without charges for as long as six years makes the claim that tribunals would ‘dispense justice swiftly’ seem misleading. Full and Fair A frequently raised objection to using military tribunals was the questionable fairness of the proceedings. Mr. Gonzales defended the disputed justice of the proceedings, 66 Ibid., Gonzales. 39
“The order specifically directs that all trials before military commissions will be ‘full and fair.’ Everyone tried before a military commission will know the charges against him, be represented by qualified counsel and be allowed to present a defense.”67 The procedures outlined under the military order allowed tribunals to proceed with no protections for even the most basic constitutional, procedural and evidentiary requirements designed to ensure fairness; no trial by jury, no presumption of innocence, lower standards for conviction, admittance of hearsay and coerced testimony, no judicial review, no absolute right to disclosure of charges, looser evidence standards, restrictions on legal representation, and proceedings were closed to the public. Each of these alterations represents lower standards for justice than found in our civilian courts. Apparently, the expectations for what constitutes a full and fair proceeding in military commissions are wholly different than what is expected in our civilian courts. Considering all of the ways military tribunals’ procedures confine and lead to disadvantages for the defendants, tribunals appear neither full nor fair. In the absence of traditional standards of justice for detainees held at Guantanamo, it was easy to begin to question if the US had lost its moral compass. Jurisdiction Led by the ACLU, critics of military tribunals raised objections to the broad jurisdictional claimed under the President’s military order. Mr. Gonzales made the point of emphasizing that jurisdiction was limited to only ‘unlawful combatants’ and ‘foreign enemy war criminals’.68 Upon a closer examination of the military order, the definitions for what constitutes an ‘unlawful combatant’ and ‘foreign enemy war criminal’ allow for far‐
67 Ibid., Gonzales. 68 Ibid., Gonzales. 40
reaching jurisdiction. The definition for ‘unlawful combatant’ according the Supreme Court is defined as, “a member of a military force who, disguised as a civilian, enters enemy territory surreptitiously to commit hostile acts. Spies and saboteurs are ‘unlawful combatants.’”69 Given the fact that the President’s military order was built on the foundation of the Quirin precedent, the definition for ‘unlawful combatants’ should have retained a similar meaning as in saboteurs’ case. In reality, the President's military order extended to a much larger population. The language in President Bush’s order allowed the tribunals to be used far more widely than President Roosevelt’s order. The order stated who the tribunals were applicable to: Any individual ‘not a United States citizen’ that the President determines there is ‘reason to believe’ (i) ‘is or was a member of the organization known as al Qaida,’ (ii) ‘has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy,’ or (iii) has ‘knowingly harbored one or more individuals described in subparagraph (i) and (ii)’.70 The President’s military order was described as if it was intended to apply only to the masterminds of 9/11. Public statements made by administration officials implied that the utilization of military tribunals would be limited. Vice‐President Cheney described who he envisioned would be subject to trial by military tribunal: “somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of 69 "Unlawful combatant". Wikipedia. 1/20/10 <http://en.wikipedia.org/wiki/Unlawful_combatant>. 70 Op. cit., Bush, Military Order. 41
innocent Americans, men, women and children,”71 Had tribunals been limited to clandestine mass murderers of civilians, the controversy that ensued may have been averted. At its peak, the Guantanamo Bay detention facility held more than 750 prisoners, most of which were captured on the battlefields of Afghanistan, Yemen, Pakistan, and Saudi Arabia.72 What gave President Roosevelt the authority to try the saboteurs by military tribunal was not merely that the men were out of uniform, but also that the men crossed enemy lines into our country. Being that the vast majority of prisoners held at Guantanamo Bay were captured abroad calls into question the applicability of the Quirin precedent. More critical was the fact that once an individual was designated as an ‘enemy combatant’, the detainee loses virtually all rights that would be afforded as a POW. With POW status, the interrogation techniques used to more effectively fight against al Qaeda would be all but impossible. By designating detainees as ‘unlawful enemy combatants’ the rights that the Geneva Conventions would afford individuals normally captured on the battlefield no longer apply. Prisoners of war would not be eligible to be tried by military tribunals. Historically, military tribunals had been used exclusively to try violations of the laws of war, as in the Quirin case. In spite of this fact, the President’s order, “applied to members of al Qaeda as a group and did not represent an individualized determination that this 71 Sorensen, Harley. "Scalia Could Save Us From Bush's Kangaroo Court". San Francisco Chronicle. 2/18/10 <http://www.commondreams.org/views01/1120‐08.htm>. 72 Northam, Jackie. "Q&A About Guantanamo Bay and the Detainees". San Francisco Chronicle. 2/20/10 <http://www.npr.org/templates/story/story.php?storyId=4715916>. 42
accused supported or engaged in hostilities.”73 With this, in order to be eligible for trial by military tribunal, not only violations of the law of war constituted eligibility, but merely an association with al Qaeda, the Taliban, or associated groups qualified for designation as an ‘unlawful combatant’. In effect, rather than an individuals actions (violations of the law of war) dictating the kind of trial and treatment they were going to receive, simply being affiliation with the wrong group rendered an individual under tribunal jurisdiction. The scope of people encompassed in the terminology, ‘foreign enemy war criminals’, was equally expansive. Under the guidelines set out by the President, tribunal jurisdiction could extend over, “any noncitizen who supports a charitable or religious organization that, in turn, provides financial aid to an entity that the government regards as an organization aimed at causing injury to the United States.”74Although the accused would have had to knowingly supported terrorism or Anti‐American conduct, the broad jurisdiction claimed was unprecedented. The statements from both Mr. Gonzales and Vice‐President Cheney made it appear that the scope of people who could be tried by military tribunal would indeed be limited, as was historically the case when tribunals had been formed. In practice, the vast number of people that were subject to military tribunals far exceeded traditional utilization. The Military Order In Practice 73 "Proceedings of a Military Commission". U.S. Government, 2007, p. 58. 74 Eisenberg, Arthur. "Op‐Ed: NYCLU Responds To President's Counsel Gonzales on Military Tribunals". NYCLU. 3/10/10 <http://www.nyclu.org/oped/op‐ed‐nyclu‐responds‐presidents‐
counsel‐gonzales‐military‐tribunals>. 43
Having evaluated the goals and justifications for the formation of military tribunals, it remains necessary to assess the conduct of actual tribunal proceedings, and ultimately, whether the use of military tribunals was justified. To find these answers, we will look at the landmark case Hamdan v. Rumsfeld. 3 Hamdan v. Rumsfeld: The Landmark Decision Limiting the Bush Tribunals In the years following President Bush’s military order, supporters of the policy expected to see swift justice meted out for terror suspects. The procedures outlined in the President’s order had been specifically designed to give military commissions ample leeway to try ‘enemy combatants’ as compared to the strict procedures in civilian courts. In practice, however, it became increasingly clear that the looser standards for military commissions were leading to extended litigation and few convictions. The concerns that many voiced in the wake of President Bush’s military order gained credibility as the military commissions began functioning. With the wide‐ranging jurisdiction claimed under President Bush’s military order, hundreds were detained and held at Guantanamo Bay Detention Facility. The unfettered conduct at Guantanamo began drawing increasing domestic and international scrutiny. The ‘enemy combatants’ that were held at the facility were often subjected to harsh interrogation, solitary confinement, and were often denied the right to trial. Over the ensuing years, reports of prisoner abuse by US troops began to emerge with increasing frequency. As early as May of 2003, reports started coming out citing cases of prisoner mistreatment. It was not until the incidents at Abu Ghraib prison in April of 2004 44
that the pictures and accounts of prisoner abuse became public. The Abu Ghraib scandal brought prisoner treatment to the forefront of our national media’s attention. The minimal standards for justice established under President Bush’s military order began to be challenged. Numerous cases emerged that set in motion a gradual progression toward an increasing number of protections and rights for the detainees at Guantanamo. Two of the most significant cases leading to greater protections for detainees were Hamdi v. Rumsfeld and Rasul v. Bush. In Hamdi v. Rumsfeld the Supreme Court ruled in favor of Yaser Hamdi, a U.S. citizen, finding that he retained his Fifth Amendment right to Due Process despite the Executive Branch declaration that he was an ‘enemy combatant’.75 Hamdi had been held as an ‘illegal enemy combatant’ and had been denied the ability to challenge his detention. The Court overruled the Executive claims that individuals could be detained indefinitely without recourse, holding that, “U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. Fourth Circuit Court of Appeals vacated and remanded.”76 The Court’s ruling allowed for Hamdi to challenge his ‘enemy combatant’ designation and seek remedy in civilian courts. In the Supreme Court case Rasul v. Bush, the question was whether or not detainees were entitled to due process. The ruling Rasul had more far‐reaching implications than the Hamdi case. In Rasul, four British and Australian citizens were captured in Afghanistan and Pakistan by US forces and then were transported to Guantanamo Bay. The families of the 75 The Oyez Project, Hamdi v. Rumsfeld , 542 U.S. 507, 2004, <http://oyez.org/cases/2000‐
2009/2003/2003_03_6696>. 76 Ibid., Hamdi v. Rumsfeld. 45
men sought a writ of habeas corpus in hopes of invalidating the men’s detention. They argued that the denials of access to attorneys, knowledge of the charges against them, and the right to trial violated the Fifth Amendment’s Due Process clause.77 The ruling in Rasul went further than Hamdi in that not only were U.S. citizens entitled to a writ of habeas corpus, but also now non‐U.S. citizens were entitled habeas rights. In this case, the Court held, “The degree of control exercised by the United States over the Guantanamo Bay base is sufficient to trigger the application of habeas corpus rights. The right to habeas corpus can be exercised in all dominions under the sovereign's control.”78 The government had maintained that since they were not held in the US, they did not have habeas rights. The plaintiffs, despite being noncitizens, were entitled to habeas rights based on the degree of control exercised by the US in Guantanamo even though they were held in Cuba. This finding would have allowed for even more substantial cases to be brought to civilian courts on behalf of detainees, however, the Department of Defense limited such access with the creation of Combatant Status Review Tribunals. Combatant Status Review Tribunals In response to the Supreme Court’s rulings in Hamdi v. Rumsfeld and Rasul v. Bush, the Department of Defense created Combatant Status Review Tribunals. The CSRTs were established in order to, “review each detainee at Guantanamo, and to provide an opportunity for the detainee to contest the determination that's been made that he is an 77 The Oyez Project, Rasul v. Bush , 542 U.S. 466, 2004, <http://oyez.org/cases/2000‐
2009/2003/2003_03_334>. 78 Ibid., Rasul v. Bush. 46
enemy combatant.”79 The creation of CSRTs allowed the Executive Branch to retain exclusive control over the military tribunal proceedings. Despite the Supreme Court’s rulings invalidating the denial of due process, the President continued to find ways to deny judicial review. The Detainee Treatment Act The Supreme Court’s efforts to impose minimal standards for justice were further nullified with the passage of the Detainee Treatment Act of 2005. The DTA was a co‐
sponsored bill in the US Senate that set standards for primarily for prisoner treatment. The legislation prohibited the, “cruel, inhumane, and degrading treatment”80 of detainees held by the United States. The noteworthy aspect of this Act with reference to the previous Supreme Court rulings was that it denied detainees access to federal courts. Detainees seeking to challenge the legality of their detention were denied any such recourse, “no court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained at Guantanamo Bay.”81 The DTA would have effectively restricted all further access to federal courts, however, a vital loophole existed in this Act. Because no specific provision existed with reference to pending cases, the Supreme Court still had the authority to hear cases already in litigation. Enter Hamdan 79 News Transcript, "Defense Department Background Briefing on the Combatant Status Review Tribunal". Global Security. 3/17/10 <http://www.globalsecurity.org/security/library/news/2004/07/sec‐040707‐dod03.htm>. 80 Heneroty, Kate. "Detainee Treatment Act of 2005". Jurist. 3/17/10 <http://jurist.law.pitt.edu/gazette/2005/12/detainee‐treatment‐act‐of‐2005‐white.php>. 81 Ibid., Heneroty. 47
Against this legal backdrop, the Supreme Court continued taking steps to place military tribunals under judicial scrutiny. Indeed, military tribunals had functioned for the most part unimpaired before the Supreme Court limited their power in the landmark case Hamdan v. Rumsfeld. There had been no successful procedural or constitutional challenges testing the legality of the military commissions authorized by President Bush prior to the Hamdan case. The story of Salim Hamdan, from his recruitment as a member of al‐Qaeda, his detention at Guantanamo, and finally his Supreme Court case, sheds unique light on how military tribunals have functioned since 9/11. In this chapter we will chart Mr. Hamdan’s exceptional journey, through which we will explore topics including the jurisdictional limitations of military tribunals, the applicability of Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions, and the Supreme Court’s findings regarding the minimal procedural protections required for military tribunals. Through the investigation of these areas, we will answer many questions regarding the constitutional and legal groundings of the tribunals authorized by the President Bush’s military order. How Salim Hamdan Wound Up At Guantanamo Despite the noteworthy case that Salim Hamdan tried before the Supreme Court, most Americans remain ignorant to his background and the circumstances surrounding his apprehension. Because of this fact, it will be informative for understanding the larger context of the case to know some of these details. Salim Hamdan’s association with al‐
Qaeda began in 1996 when he met with Nasser al‐Bahri outside a mosque in Sana’a, Yemen. Al‐Bahri, a well‐educated Saudi and seasoned holy warrior, was trying to recruit a small army of jihadis to create an Islamic insurgency in Tajikistan. There aim was to rebel against 48
Tajikistan’s Russian‐backed government. Before they could make it to Tajikistan, the men were stopped at the Afghan border. Rather than simply returning to Yemen, Hamdan, along with seventeen fellow jihadis, went to visit Osama bin Laden. Hamdan decided to join bin Laden, first working as a mechanic and driver. Ultimately, Hamdan served bin Laden as a chauffeur and bodyguard. According to those close to bin Laden, Hamdan had bin Laden’s trust; however, he was never a member of his inner circle.82 In the period immediately preceding 9/11, Hamdan participated as a driver for a small motorcade carrying top al‐Qaeda leaders, including bin Laden and Ayman al‐
Zawahiri. He drove the men into the mountains of Afghanistan to watch the attacks on the World Trade Center carried out. In the weeks that followed the attacks, Hamdan returned to his home in Kandahar where he was supposedly coming back to get his young daughter and pregnant wife. Although his story is impossible to verify, the evidence suggests that he may have had other intentions. By late November, U.S. forces had a strong presence in Afghanistan and were on the constant look out for al‐Qaeda operatives. According to Hamdan’s defense lawyers, he had been driving his family toward Pakistan, but then became concerned that he would be arrested if he tried to cross the border. Instead, he dropped off his family near the Pakistani boarder and planned to return the car he had borrowed before finding another way into Pakistan. Government prosecutors claim that Hamdan had remained in Afghanistan to fight alongside al‐Qaeda and the Taliban. Corroborating government claims were the accounts of NATO forces, which captured Hamdan in Afghanistan just hours after he left his family near 82 Mahler, Jonathan. "Hamdan: Guantánamo's Mystery Man". Time. 3/17/10 <http://www.time.com/time/nation/article/0,8599,1825334,00.html>. 49
the boarder. NATO forces captured Hamdan along with four other alleged al‐Qaeda associates. In a firefight that ensued, three of the men died, Hamdan and the remaining man were turned over to US forces. In the search of Hamdan’s vehicle, forces found two surface‐
to‐air missiles in the trunk of his car.83 In light of these facts, the alibi offered by Hamdan seems unlikely. While the facts of the Hamdan case are informative in understanding the charges the government brought against him, the Supreme Court’s case did not hinge on these facts. Hamdan’s Detention At Guantanamo In May of 2002, Hamdan was transferred to Guantanamo Bay, Cuba, where he became the 149th detainee held at the facility. FBI interrogator and al‐Qaeda expert Ali Soufan repeatedly interrogated Hamdan over the next year and a half. During that time, Hamdan was imprisoned in the Delta cellblock in one of 48 six‐by‐eight foot cells divided by wire mesh walls.84 After the long period of interrogation, President Bush decided to make Hamdan the first Arab defendant in the military tribunals. While the decision to make Hamdan the first to be tried by the military tribunals was puzzling to some, there were a number of factors playing into the decision. First off, the government thought it was less risky to try lower ranking operatives first, in case unforeseen circumstances arose. Another factor was the consideration that Hamdan had been in US custody since his capture and had not been subject to interrogation by foreign countries. Had Hamdan been held in another government’s custody, it may have opened the door for questions about his 83 Ibid., Mahler, Hamdan. 84 Mahler, Jonathan. The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. New York, NY: Farrar, Straus and Giroux, 2008, p. 11. 50
treatment. The other factor playing in the decision to use Hamdan was the narrative appeal of his story. Being that Hamdan’s association with al‐Qaeda span a period that included the two attacks on embassies in East Africa, the 2000 bombing of the U.S.S. Cole and of course the attacks of 9/11, he had a special appeal.85 The US government brought formal charges against Hamdan in July of 2004, charging Hamdan with conspiracy to commit terrorism and providing material support for terrorism. The government offered a plea bargain, which proposed 20 years imprisonment in exchange for full cooperation, including testifying at military commissions against other detainees. With the urging of his military defense lawyer Lieut. Commander Charles Swift, Hamdan refused the offer. Swift suggested the possibility of suing President Bush in order to try to secure his freedom. Hamdan tentatively agreed, “I don’t want to be famous, I just want to get out of here.”86 It was nearly six years before Hamdan finally got his day in court, in which time he was subjected to the harsh conditions of Guantanamo. During his detention at Guantanamo, Hamdan struggled to cope with the prison environment. Guantanamo officials described Hamdan as, “a problematic prisoner, a rabble‐rouser who turns every order into a negotiation and incites his fellow inmates to acts of defiance. For this reason, he has spent much of his time in conditions tantamount to solitary confinement. Hamdan has also gone on and off hunger strikes, one of which ended with his being force‐fed liquid nutrients in a restraining chair.”87 While we can only speculate as to the circumstances that would have led to Hamdan’s hunger strikes and 85 Ibid., Mahler, The Challenge, p. 12. 86 Ibid., Mahler, The Challenge, p. 12. 87 Ibid., Mahler, The Challenge, p. 13. 51
defiant behavior, the legendarily callous treatment of prisoners at Guantanamo would seem a likely cause. According to his lawyers who were amongst the few able to keep in regular contact with him, “Hamdan's six years at Gitmo have left him a shell of a man. He has deteriorated mentally to the point where he can no longer meaningfully assist in his own criminal defense. He is suicidal, hears voices inside his head and talks to himself.”88 Under such conditions, Hamdan remained on the path to being tried by military commission. That was, at least, until the Supreme Court heard his case, placing Hamdan at the center of one of the most noteworthy legal debates of our time. The Supreme Court Challenge Hamdan filed a petition for a writ of habeas corpus in federal district court to challenge the legality of his detention. Before the United States District Court for the District of Colombia made a ruling on his petition, Hamdan was designated an enemy combatant in a military commission hearing. After his designation as an enemy combatant, the district court ruled that, “he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission.”89 The Circuit Court of Appeals for the District of Columbia overruled the district court’s decision, on the basis that the Geneva Convention was unenforceable by federal courts and that establishment of military tribunals was constitutional based on the President’s well‐established authority to constitute them. This ruling by the Court of Appeals forced the question as to whether or not rights protected by the Geneva 88 Op. cit., Mahler, Hamdan. 89 Op. cit., Proceedings of a Military Tribunal. 52
Conventions (especially with reference to Article 3 of the international treaty) were enforceable in federal courts through habeas corpus petitions. Furthermore, there remained questions as to whether the provisions in the Uniform Code of Military Justice applied to the procedures of military tribunals. The Supreme Court ended up taking on questions regarding jurisdiction, the applicability of international treaties (Geneva Conventions) in federal courts, the applicability of the Uniform Code of Military Justice (UCMJ), and the minimum standards that these findings would entail. The Supreme Court’s findings on these matters had tremendous implications for the legal formation of military tribunals as well as how they would operate in the future. Charges and Jurisdiction In his Supreme Court petition, Salim Hamdan challenged the jurisdiction of military commissions on the grounds that the charges brought against him were not violations of the law of war and that the commissions’ procedures violated both the UCMJ and the Geneva Conventions on multiple grounds. In his last memorable opinion, Justice John Paul Stevens described the claims of the defense, He concedes that a court‐martial convened in accordance with the Uniform Code of Military Justice or, of course, a civilian court would have jurisdiction to try him; but he contends that the military commission convened by the President lacks such authority, because the charge does not allege a violation of the law of war, and the commissions’ procedures violate both the UCMJ and the Geneva Conventions.90 The Applicability of the DTA 90 United States, 548 U.S. 557 (2006). Hamdan v. Rumsfeld vols. 2006, p. 1. 53
With respect to the jurisdiction of this case, there were many factors that the Court had to weigh. The Court first had to consider whether or not the DTA applied to Hamdan. As we noted earlier, the section of the DTA regarding jurisdiction explicitly seeks to prevent any federal court from hearing a habeas corpus petition brought from a detainee, “no court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained at Guantanamo Bay.”91 Although the language in the DTA clearly sought to prevent the exact kind of hearing that Hamdan was being granted, the Supreme Court found that the Act did not apply in this case. As the Court majority determined, “Congress’ failure to provide that the jurisdiction‐
stripping section of the DTA applies to pending cases stands in stark contrast to its expressed statement that the other jurisdictional provisions included in the same section so apply. This contrast persuasively indicates that Congress did not intend the jurisdiction‐
stripping provision to apply to pending cases.”92 Because Congress had not specifically made a stipulation that the Act applied to pending cases, like Hamdan’s, the DTA did not apply. The dissenting opinions held by Justices Scalia, Thomas, and Alito took strong objection to this finding. In the opinion submitted by Justice Scalia, he gives a scathing criticism of the majority’s finding, “In my view,” he wrote, “it is clear that this Court has no jurisdiction to pronounce the opinion it has released today. It is easy to explain why,” He argued that, “today’s is the first case in American history, and perhaps Anglo‐American history, in which a court has failed to apply to pending cases a statute ousting jurisdiction 91 Op. cit., Heneroty, Detainee Treatment Act. 92 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Sec I. 54
that did not contain an explicit exception for pending cases, and the cases coming out the other way are legion.” Justice Scalia had the exact opposite rationale from the majority opinion; because Congress did not contain an exception for pending cases, the statute must apply. But the Court’s majority rejected his reasoning. In addition to his finding that the statute does apply based on the historical fact that jurisdictional stripping law does apply unless explicitly denoted to not apply, Scalia also pointed out that, “there are hundreds of such petitions; so that today’s jurisdictional decision ensures that Guantanamo litigation will continue in district courts for many years to come.” Scalia’s dissent about the applicability of the DTA was certainly compelling and the majority’s opinion on this matter did appear to reverse precedent. Ultimately, allowing the DTA to apply would have prevented the Court from ruling on the more substantive issues in Hamdan’s case. Since the Courts majority ruled that the DTA did not apply, the Court was free to address the remaining questions. Abstention Having lost on the applicability of the DTA, the Government argued on the matter of abstention. The government contended that even if it was found that Federal Courts do in fact have jurisdiction over such cases, that the courts should abstain from hearing defendants claims until a verdict from the military commission has been reached. The abstention doctrine that the government referred to in their line of reasoning would contend that the Supreme Court and other civil courts should refuse to hear the case because it would potentially intrude upon the powers of the military courts.93 The majority 93 "Abstention Doctrine". 3/17/10 <http://law.jrank.org/pages/3927/Abstention‐Doctrine.html>. 55
opinion argued that on the matter of abstention, “The comity considerations underlying the usual rule of abstention in military cases do not apply because Hamdan is not a member of our armed forces, and his commission is not part of a Congressionally crafted system of military justice.” The Court was not going to decline to make a ruling on the basis of the fact that it might limit the power of military tribunals, especially in light of the fact that Congress had not formed the tribunals in question. The Limitation on Charges for Military Tribunals The final question on jurisdiction was regarding the charges that the government could bring against detainees. The charges brought against Hamdan were ‘conspiracy to commit acts of terrorism’ and ‘providing material support to terrorists’. The opinions on this matter were as contentiously argued as any on this case. The majority opinion found, “Finally, we conclude that the offense with which Hamdan has been charged, conspiracy to commit acts of terrorism, is not an offense triable by this kind of military commission.”94 Justice Stevens went on to describe the circumstances that military tribunals have been historically served purposes for and how they could apply for Hamdan, “military commissions historically have taken three forms: first, they have been used to stand‐in for civilian courts and to try civilian crimes in territory governed by military law when the civilian courts are closed. They were so used during the Civil War, for example; second, they have been used, again as stand‐in, for civilian courts in occupied territory, such as Germany after World War II; third, they have been used to try violation against the law of 94 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Sec IV, A. 56
war during time of war, typically when courts‐martial lack jurisdiction to try a particular defendant of offense.”95 Hamdan was detained based on the third example, with the tribunal being used to try a violation against the law of war during wartime. The Court found that a military commission could not constitutionally try the government’s case because the charges did not constitute common law violations of the law of war. Interestingly, recall that in Ex Parte Quirin, the Court had the exact opposite ruling for tribunal jurisdiction. Had the Court ruled the same way in Quirin, the saboteurs would have faced a maximum 30‐year sentence. This Court held that in order for a charge to be tried by a military commission, neither the elements of the offense nor the permissible punishment can be defined by any statute, unless otherwise expressly authorized. Referring back to the facts surrounding charges against Hamdan in particular, Justice Stevens argued, Conspiracy is, of course, a crime under federal statute and under the UCMJ; it is not a war crime under the common law of war…law of war commissions may try people only for committing or attempting to commit overt acts that violate the law of war. None of the overt acts that Hamdan allegedly committed acting as Osama bin Laden’s bodyguard and driver, transporting weapons and receiving training, is itself a violation of the law of war. Because the jurisdiction of the law of war military commission stands and falls with the validity of the charge, we conclude that the defect in the charge against petitioner precludes this military commission from proceeding.96 Because Congress in the DTA had not explicitly given the President the authority to try crimes defined by existing statute and the fact that none of the acts in and of themselves 95 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Subsection B. 96 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Subsection B. 57
constituted violations of the law of war, the President did not have the authority to create military commissions trying such offenses. These points were strongly objected to by Justice Clarence Thomas. He contested that the crimes in question had been tried on numerous occasions and that tribunals should clearly have jurisdiction over such war crime offenses. Justice Thomas, having in 15 terms never read a dissenting opinion from the bench, felt this case necessitated a response. His dissent was adamant in its support of executive prerogatives, The plurality would hold that petitioner has not been charged with an offense triable before a military commission. This conclusion is unsupportable. Petitioner has been charged both with joining a war‐criminal enterprise and with conspiring with Al‐Qaeda to commit various war crimes. The crime of unlawful membership in a war‐criminal organization was repeatedly tried before Civil War military commissions and before the American Military Tribunal in Nuremberg and is recognized in all of the relevant treatises as a crime against the laws of war. Even if there were some doubt as to whether petitioner could be tried simply for joining Al‐Qaeda, it is undisputed that it is a crime against the laws of war for an unlawful combatant to provide the enemy with arms, transportation and other services. Petitioner has been charged with supplying such provision and services to Al‐Qaeda’s top leadership, and thus the President has the authority to try him on these grounds alone. It was most surprising to find such fundamental disagreement between Justices on what acts constituted violations of the law of war. On the one hand, we saw an opinion that would allow virtually no inherent power for the Executive to create military commission without express Congressional approval. Because there are few crimes that are not defined by statute at the federal level, the President would have little leeway to form tribunals independently. On the other hand, under the dissenting opinion’s rationale, a far broader spectrum of offenses would be under tribunal jurisdiction and legally grounded. In this 58
respect, the decision ranks among the most significant rulings on the restriction of Presidential power. This Court’s ruling was far more restrictive than the Court that tried Quirin, probably in large part because the more peaceful circumstances under which the ruling was made. Fear can distort perceptions and lead to strange rationalizations. Although it can be easy allow anxiety to suspend our ability to reason, we must resist the temptation. The ruling in Hamdan demonstrated that in times of relative peace, the Court is far more willing to protect the rights of those who may otherwise be unfairly persecuted. The Applicability of the Uniform Code of Military Justice The Supreme Court did not limit its opinion to only matters related to jurisdiction. The second major finding was that military commissions must comply with any applicable requirements of the UCMJ itself, “Article 36(a) requires that any rules the President adopts to govern proceedings before courts martial and military commissions alike be consistent with other provisions of the UCMJ.”97 The uniformity requirement codifies that in the absence of some emergency, the same procedures used in courts‐martial must be apply to military commissions. One such provision outlined in courts‐martial is the requirement that the accused must be present during most of the proceedings. The Court held, “It is undisputed that the procedures adopted allow the accused and his civilian counsel to be excluded from the proceedings and to be prohibited from seeing certain evidence.”98 The other cited deviation 97 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 98 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 59
from courts‐martial was the failure to adopt similar rules governing the admissibility of evidence. In response to this deviation, Justice Stevens explained that there was not a valid justification for the absence of courts‐martial standards for evidence, “There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence. The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.”99 The procedures established by the President’s military order fell one after another. More important was the fact that since the procedures in question were found to be illegal, the utilization of military commissions codified under the President’s military order was invalidated. Due to the fact that there was no legitimate justification offered for the deviations present in the President’s procedures, the Court ruled that military commissions in their present constitution were invalid. As put the words, “because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.” So in this circumstance as well as all others in which these deviations occur, the findings of those commissions are invalid. The dissenting opinion on this matter contended that Executive prerogative was ample grounds for the cited deviations in procedures. Justice Thomas argued that the President’s inherent powers afforded by the same document were more applicable and that the majority misinterpreted Articles 21 and 36(b) of the UCMJ. He contended that although the majority was grounded in its finding that Article 21 recognizes the Presidents right to form military commissions, “it fails to acknowledge that this Court has previously 99 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 60
held that Article 21 preserves the common‐law war status of military commissions, including the President’s authority to prescribe their structure and procedures in the manner he sees fit.”100 He continued in his dissent by pointing out that Article 36(b) of UCMJ was also misconstrued, “But Article 36(b) does not mention military commissions and, thus, cannot plausibly be read to overrule the settled meaning of Article 21 as preserving the President’s unfettered authority to prescribe military‐commission procedures.”101 While Justice Thomas has an argument when strictly looking at the wording of the articles at hand, the fact that the President’s procedures violated minimum standards defined by the Geneva Conventions presented more problems for the government. The Applicability of the Geneva Conventions Possibly the most vital finding by the Supreme Court was that the Geneva Conventions applied to military commissions. The Court ruled that Common Article 3 of the Geneva Conventions was applicable to the conflict with al‐Qaeda because by its terms, Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties."102 Common Article 3 dictates that certain standards must apply to armed conflicts that are ‘not of an international character’.103 The Court also found that Article 21 of the UCMJ would trigger the application of the Geneva Conventions. In its words, “Article 21 incorporates the common law 100 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Thomas. 101 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Thomas. 102 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 103 "International Humanitarian Law ‐ Treaties & Documents". ICRC. 3/17/10 <http://www.icrc.org/ihl.nsf/WebART/375‐590006>. 61
governing military commissions and conditions the President's power to convene such commissions on compliance with the law of war, which includes international instruments like the Geneva Conventions.”104 The applicability of the Geneva Conventions to military commissions reinforced the protections afforded under the UCMJ. Although there was substantial overlap in the guarantees afforded under the Geneva Conventions and UCMJ, Common Article 3 served to strengthen the grounds by which minimum standards must apply. The relevant section of Common Article 3 to the military commissions was with reference to part d), “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”105 Justice Kennedy explained in his opinion that, “the regular military courts in our system are the courts‐martial established by Congressional statute.”106 Because courts‐
martial are the regularly constituted courts in our military justice system, all of the minimal standards and guarantees must apply to be in accordance with Common Article 3. The Court found that the commission procedures failed to meet these minimum requirements. The majority opinion also cited Article 75 of Additional Protocol I (1977) to the Geneva Conventions, which guaranteed that persons have the right to be present at their trials.107 The commission’s procedures violated these minimum standards; “We conclude that the commission violates Common Article 3 in another respect, because its rules permit exclusion of the accused from his own trial and prevention of his access to evidence against 104 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 105 Op. cit., ICRC, Treaties & Documents. 106 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Kennedy. 107 American Journal of International Law, 3/17/10, http://www.jstor.org/stable/4126328?seq=5 p. 992. 62
him. Customary international law requires that a defendant be permitted to see and hear the evidence against him.”108 The Need for Congressional Reform In its concluding statements the Court stated that their decision ultimately rested on a single ground: “Congress has not issued the Executive a ‘bank check’… Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary, and no emergency stands in the way of such an effort.”109 This Court’s decision stood in stark contrast to the Court trying the saboteurs in World War II. The Court exercised a far greater degree of independence and willingness to play an interventionist role in our government’s affairs. The combination of strong legal norms for protecting the rights of individuals as well as the more peaceful conditions under which the ruling was made allowed for the Court to come to its decision. Although the injustices of military tribunals had been upheld in the past, the message this Court sent was clear; the military commissions could not continue in their present form. The President had to gain Congressional approval for the military commissions to operate legally. The Senate Judiciary Committee would meet to do address those ends. 4 An Opportunity for Reform ­Because the accepted definition of a regularly constituted court includes ordinary military courts (courts­martial) but excludes all special tribunals, the President's military commissions 108 Op. cit., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion Stevens. 109 Ibid., United States, 548 U.S. 557, Hamdan v. Rumsfeld, Opinion End Stevens. 63
are not in compliance with Common Article 3 since he has demonstrated no practical need for deviating from courts­martial practice.110 –Scott L. Silliman, Professor Duke University School of Law ­In discussing the subject of how to confront and disable al Qaeda, too many people, I think, seem to view the war on terror as a war merely in the rhetorical sense, like the war on drugs or the war on poverty. It is not. It is an armed conflict with an organized enemy that calls forth the military authorities of the Government, including the right to detain and the right to try before a military tribunal. No Justice of the Court questioned that. It is merely a matter of how to exercise the authority to try within the context of a military tribunal.111 ‐Fmr. Associate AG Daniel P. Collins In the week following the Supreme Court’s ruling in Hamdan v. Rumsfeld, the Senate Judiciary Committee convened to discuss how Congress should respond to the Court’s historic decision. Since the ruling in Hamdan held that the procedures in place for the tribunals at Guantanamo did not comply with the UCMJ nor the Geneva Convention, Congress was answering the call to create a constitutionally legal process for tribunals to function, “The Supreme Court determined that the Bush‐Cheney administration’s system for prosecuting detainees at Guantanamo is illegal, and it told the President, in effect, to stop his illegal conduct.”112 As a result of the Supreme Court invalidating the procedures used in the Bush administration tribunals, Congress was presented with an opportunity to create a new legal framework for how tribunals would be able to function in the future. The chief concerns for Congress in deciding how to reform military tribunals needed to be two considerations; first, that most of the people subject to tribunals were al Qaeda or the terrorist network operatives; and second, in light of this fact, what are necessary deviations from courts‐martial rules. 110 United States Senate, Committee On The Judiciary. "548 U.S. 557". Hamdan v. Rumsfeld: Establishing a Constitutional Process. 2006, p. 55. 111 Ibid., Establishing a Constitutional Process, p. 57. 112 Ibid., Establishing a Constitutional Process, p. 2. 64
There were many opinions on how the ruling affected the use of tribunals, however, it appeared that there were three paths that were on the table; first, the administration could abandon using military tribunals and use the existing courts‐martial or civil courts system; second, the Executive could use military tribunals in such a way that would comply with the requirements of the UCMJ and Common Article 3 of the Geneva Conventions; and third, Congress could create new procedures for the existing military tribunals and bring them into accordance with the Supreme Courts ruling. The Senate Judiciary Committee met in order to pursue the third option. The goal was to create legislation whereby military tribunals met the requirements handed down by the Supreme Court and provided justice for enemy combatants in accordance with the rule of law. A strong sense of national security interests remained throughout the hearings. What emerged from the debate was the Military Commissions Act of 2006. With swift and decisive action, Congress could restructure military tribunal procedures to fit our nation’s traditional standards for justice. Given the complexity of the matter, a reevaluation of certain issues was necessary; how the applicability of the UCMJ and Geneva Conventions affected procedures, the level of evidence required to continue detention, Combatant Status Review Tribunals, balancing the protection of intelligence and due process, and whether Miranda rights should apply. In an effort to give fair deliberation to all issues, testimonies from numerous experts were considered. With a blank canvas to write on, Congress had the opportunity to legislate a truly full and fair process. We will analyze the testimony on the issues Congress considered, the Military Commissions Act of 2006 that Congress passed, and how Congress missed the mark with this legislation. 65
Defending Tribunals At the outset of the hearings, the Bush administration’s representatives, Assistant Attorney General Steven Bradbury and Department of Defense General Counsel Daniel Dell’Orto, provided opening statements. In the remarks issued by Mr. Dell’Orto, he began by claiming the use of military commissions was an absolute necessity for the situation, “Alternative processes are necessary to avoid the absurd result of adopting protections for terrorists that American citizens do not receive in civilian courts, nor do our service members receive in courts‐martial.”113 Throughout their testimony, the two administration representatives defended the practices of military tribunals. They argued that the nature of the individuals they were trying as well as the crimes in question made the utilization of tribunals a practical necessity. Their recommendation was that Congress should ratify the tribunals, for the most part, as they exist. General Observations Various Senators offered general remarks on the commissions and their functions. The late Senator Ted Kennedy castigated the President’s utilization of tribunals. Kennedy argued that the procedural departures in Bush tribunals were unjustified, “the administration created a system of ad hoc military commissions that led to extended litigation and the Supreme Court ruling. And as a result, more than 4 years later we have not yet successfully prosecuted a single detainee, and Guantanamo has become an international embarrassment.”114 Senator Kennedy was not alone in voicing his distain for the way tribunals had functioned. Vermont Senator Patrick Leahy had a similarly critical 113 Ibid., Establishing a Constitutional Process, p. 5. 114 Ibid., Establishing a Constitutional Process, p. 32. 66
evaluation, “I find it hard to fathom that this administration is so incompetent that it needs kangaroo court procedures to convince a tribunal of United States military officers that the worst of the worst in prison at Guantanamo Bay should be held accountable. Military commissions should not be set up as a sham. If they are to be United States military commissions, they should dispense just punishment fairly, not just be an easier way to punish.”115 Though most on the Judiciary Committee were in agreement that the current functioning of tribunals was imperfect, more information was needed to decide the necessary response. Without a clear consensus on how to reform the tribunal procedures, testimony began with the discussion of observations on how tribunals had been functioning. Amongst those called in to testify were participants and visitors to the proceedings at Guantanamo. Air Force Captain John Carr, wrote in his experience, the commission was, “a half‐hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low‐level accused in a process that appears to be rigged.”116 One of the few who had visited Guantanamo to come to the defense of military tribunals was Utah Senator Orrin Hatch, “I was one of the first to go to Guantanamo, and I went completely through the process and saw that is a reasonable, decent, honorable process, in spite of what some have said about it.”117 As testimony continued to be heard, a growing consensus in accounts began to emerge. In Major Robert Preston’s account, he also raised questions about the fairness of 115 Ibid., Establishing a Constitutional Process, p. 12. 116 Ibid., Establishing a Constitutional Process, p. 52. 117 Ibid., Establishing a Constitutional Process, p. 23. 67
the proceedings, “writing a motion saying that the process will be full and fair when you do not really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer.”118 Salim Hamdan’s lead defense attorney Lieut. Commander Charles Swift offered another assessment of the tribunal’s functions: “Security is always a consideration in trials implicating the defense of our nation. The commission security rules, however, are written in such a way to invite abuse, a fact that became only too clear to members of the prosecution as well as defense.”119 Questions remained as to whether military commissions could actually deliver the ‘full and fair’ trials promised in the President’s Military Order. A final account selected from a military defense lawyer crystallized the issue, “The disregard for the principles of justice in the commissions has increasingly put members of the Chief Defense Counsel’s Office in the position where they would either violate ethical requirements incumbent on their practice of law or face criminal charges for the violation of military orders.”120 Although diversity in opinion existed, the numerous accounts questioning the fairness and legitimacy of military commissions demonstrated the need for reform were tribunals to live up to the President’s promise of a full and fair trial. The UCMJ and Geneva Conventions At the core of any reform to military tribunals needed to be the consideration of how we should balance our national security interests and the fairness of trials for detainees. Because the Hamdan ruling in essence said that the scale had been tipped to far 118 Ibid., Establishing a Constitutional Process, p. 52. 119 Ibid., Establishing a Constitutional Process, p. 53. 120 Ibid., Establishing a Constitutional Process, p. 53. 68
against the detainees, an evaluation of how the UCMJ and Geneva Conventions affected reform was necessary. When discussion on Common Article 3 began, South Carolina Senator Lindsay Graham called into question whether or not it was sensible to apply the article. “Does it make sense to apply Common Article 3,” he observed, “to a group of people who do not sign up to the Convention, who show distain for it, who would do everything in their power to not only trample the values of the Geneva Convention but every other treaty that we have ever entered into?”121 Surely it could be argued that any individual who knowingly breaks a law is showing “distain” for it, however, does an individual or group’s defiance of the law mean that all individuals being tried should be denied a fair trial with universally recognized standards? If we are committed actually having full and fair trials, the answer should be a ‘no’. In this country we have a long history of respecting the rule of law and fair standards of justice for both our citizens and our enemies. Assistant Attorney General Bradbury was similarly reluctant to legislating to Common Article 3 standards. He devoted nearly his entire initial statement to discussing the application of Common Article 3 of the Geneva Conventions and how it affected military commissions. He did not contest that the Geneva Conventions applied to military tribunals; rather he attempted to explain why current standards constituted compliance, “Congress codified that standard in the McCain amendment, part of the Detainee Treatment Act, which prohibits ‘cruel, inhuman, or degrading treatment or punishment,’ for all detainees 121 Ibid., Establishing a Constitutional Process, p. 45. 69
held by the United States. We all believed that enactment of the DTA settled questions about the baseline standard that would govern the treatment of detainees.”122 As Mr. Bradbury continued in his statement on the applicability of Common Article 3, he remarked on the ambiguity of the terminology used in the document. His remarks struck a sharp cord with Dean of Yale Law School, Harold Koh: “I should point out that the White House spokesman, Tony Snow, was asked a similar question and gave a similar answer. So this sounds like it is the official administration position. They do not know what ‘humiliating and degrading treatment’ means. I think anyone who saw Abu Ghraib knows that is humiliating and degrading treatment.”123 In response to Mr. Koh, Mr. Bradbury fell back to the national security argument, saying it was necessary to leave such options open: “I have got a lot of concern, Dean, with all due respect, about how Common Article 3 can restrict our Nation’s ability to defend ourselves when it comes to the treatment.”124 It seemed clear that Mr. Bradbury would consider the issue only through the scope of protecting our nation. Mr. Koh had a pointed and sensible response to the hard‐line view offered by Mr. Bradbury, So what was really said in 1949 when they were crafting the Geneva Conventions was there must be a core of minimum treatment that we are ready to give to every country in the world, and every country in the world respects it except for the Island of Nauru. So I think that the real question is does Congress want to be in a position now of passing a law which is essentially saying that the United States wants not to be a part of this baseline minimum standard. And I think that would be very, very damaging for our own troops, for our country 122 Ibid., Establishing a Constitutional Process, p. 8. 123 Ibid., Establishing a Constitutional Process, p. 50. 124 Ibid., Establishing a Constitutional Process, p. 51. 70
to say that of all the countries in the world who accept this baseline minimum standard, we do not.125 In spite of the many opinions that the conduct and procedures used in military commissions violated Common Article 3, Mr. Bradbury maintained the DTA was sufficient to satisfy the requirements. Furthermore, Mr. Bradbury never addressed the other key aspect of the Court’s holding on Common Article 3. While it is true that Common Article 3 prohibits, “outrages upon personal dignity, in particular humiliating and degrading treatment,”126 the Supreme Court’s holding in Hamdan was based on more than that finding. In chapter 3, the Supreme Court held that military commissions also violated Common Article 3 because they did not meet the requirement of being a, “regularly constituted court,” providing, “all the judicial guarantees which are recognized as indispensable by civilized peoples.”127 Perhaps Mr. Bradbury wanted to limit his interpretation of the Supreme Court’s holding as to why the military tribunals were not in accordance with Common Article 3. Despite the seemingly clear Supreme Court holding, Mr. Bradbury argued that the language present in the DTA was sufficient to satisfy Common Article 3. We should not overlook that military commissions were also not in compliance with Common Article 3 because they lacked minimal procedural protections and were rule to be not regularly constituted courts based on deviations from the UCMJ. Reform Recommendation In order to remedy the deviations from Common Article 3, Congress had a few options available. It could pass legislation that made provisions to prohibit the procedures 125 Ibid., Establishing a Constitutional Process, p. 59. 126 Op. cit., ICRC, Treaties & Documents. 127 Ibid., ICRC, Treaties & Documents. 71
that the Supreme Court found were in violation of Common Article 3, they could nullify the rulings and not make Common Article 3 applicable, or they could take on comprehensive reform so as to ensure no future litigation would be brought against the military commissions conduct and bring them fully in line with Common Article 3. Scott Silliman, Professor at Duke University School of Law, offered his perspective on how Congress should treat Common Article 3, “Many legal scholars believe that it is possible for this Congress to actually legislate around Common Article 3. However, giving Congressional sanction to the minimal level of due process in commissions, which fails to satisfy a commonly recognized international legal standards, I believe, Mr. Chairman, imprudent.” In my opinion, the most sensible remedy for all violations of Common Article 3 would be to simply apply the UCMJ to military tribunals. Not only is the UCMJ in full compliance with Common Article 3, it would also fulfill the need to bring military tribunals up to the standard of a regularly constituted court. In his written statement, Mr. Silliman urged the committee to consider applying the UCMJ, The Supreme Court in Hamdan clearly implied that courts‐martial under the Uniform Code of Military Justice, the type of military trial system used to prosecute members of our own armed forces, could appropriately and with judicial approval be used to prosecute those at Guantanamo Bay. This is a fair and well‐proven system of law, created by Congress some 56 years ago, that is more than adequate to the task.128
Senator Leahy also regarded the UCMJ as an ideal way to satisfy the Supreme Court ruling in Hamdan, Start with the premise that the United States already has the best system of military justice in the world, and that throughout our Nation’s history both military commissions used to 128 Op. cit., Establishing a Constitutional Process, p. 55. 72
try enemies captured in war and courts‐martial used to try our own personnel have applied the same basic procedures. We are fortunate enough to have this tried and true system which would be used to bring terrorists to justice.129 Although applying the UCMJ would certainly bring the military commissions in line with Common Article 3, there was the concern that giving the terrorists the same rights as our military personnel would be going to far. Arizona Senator John Kyl voiced this concern, questioning if the UCMJ standards might be impractical to apply to terrorists, “Is there a distinction between the rationale for the rights provided to members of our military under the UMCJ and the rationale for the rights provided to terrorists?”130 This question was directed at Mr. Dell’Orto who contested such provisions would be impractical, (the UCMJ) Contains numerous rights for an accused that go well beyond what, as I have said, we have in our civilian courts, go well beyond what takes place in domestic criminal courts in other countries. It would be ludicrous in my estimation to accord those sorts of rights at that level to that degree to the sorts of people we have here who would get far less in the way of protections were they tried in their home countries, wherever those countries might be.131 There are certainly provisions in the UCMJ that are designed to offer different protections for defendants than would be found in civilian courts, but these alterations are based on the nature of trying military crimes and military personnel, not in order to provide unreasonable protections. We have different systems of justice because each offers practical advantages in their respective jurisdictions. As to the point that ‘the sorts of people,’ who are being tried are offered ‘far less in the way of protections,’ ‘in their home countries,’ this argument seems entirely senseless. If a reason to not afford all people 129 Ibid., Establishing a Constitutional Process, p. 13. 130 Ibid., Establishing a Constitutional Process, p. 55. 131 Ibid., Establishing a Constitutional Process, p. 56. 73
universally recognized standards for justice is that they would not be afforded these rights in their home country, than justice is doomed to a race to the bottom. Our standards of justice should never be based on the minimum we can get away with, or the standards that other countries set, instead it should be in accordance with what actually constitutes a just proceeding. For military offenses, we have decided that the UCMJ is the standard for a just proceeding. By adopting the same system of military trials for prosecuting terrorists that we use for our own military personnel, we would be sending the clear message that we set the bar high, regardless of what the enemy does. The application of the UCMJ would go far in restoring our international credibility by proving that we are, in practice as well as rhetoric, a nation under the rule of law. Limiting the UCMJ: Necessary Exceptions If Congress applied the UCMJ to the military commissions, a handful of exceptions would be necessary to ensure that tribunal proceedings functioned in a full and fair manner as well as to protect national security interests. In order to give fair weight to national security interests, Congress could legislate an exception for the hearsay evidence or unsworn statements so long as they went through a strict authentication process. However, under no circumstances should statements coerced through interrogation be admissible. In order to have military tribunals function most fairly, there would need to be alterations to the appeals process and in certain trial conduct. We will first look at the need for a more robust and substantial judicial review process. CSRT 74
As noted in chapter 3, in response to the Hamdi and Rasul cases, the Department of Defense created Combatant Status Review Tribunals in order to provide detainees with an opportunity to contest the determination that he is an enemy combatant and to determine the appropriateness of continuing to detention. The unlawful combatant designation was triggered, according to definitions set out in 948a(1)(i), “for a person who has purposefully and materially supported hostilities against the United States,” and by definition, if, “he is connected to Taliban, al Qaeda, or associated forces.”132 Because the CSRTs unlawful combatant determination for detainees is based on the definitions in President Bush’s military order, there was no true evaluation of whether or not a detainee’s action was a violation of the law of war by non‐executive definitions. Also, any determination of unlawful combatant status has to also address the question of how much evidence should be necessary to keep individuals detained in Guantanamo. Senator Arlen Specter posed this question to Assistant Attorney General Bradbury, “How much evidence should be presented to keep people detained in Guantanamo in enemy combatant status?”133 Mr. Bradbury evaded the question initially saying that we had a system in place to provide a make that determination, the Combatant Status Review Tribunals. When pressed to give a more direct answer to the question, Mr. Bradbury gave his recommendation for the CSRT process, “We think that it does not necessarily have to be a preponderance‐of‐the‐evidence standard, that perhaps a substantial‐evidence standard could be used. The Detainee Treatment Act, which allows the Secretary of Defense to design standards and procedures for CSRTs and then provides 132 Ibid., Establishing a Constitutional Process, p. 34. 133 Ibid., Establishing a Constitutional Process, p. 10. 75
court review of CSRT determinations is an appropriate one.”134 The lingering issue is that with the Secretary of Defense in control, it still absolute power in the Executive’s hands. Critics of the CSRT process would contend that because the Executive Branch still retained complete control over the determinations, the process does not satisfy the degree of Due Process the Supreme Court called for. Nonetheless, for reform considerations, if the institution of military commissions is to continue to function, it would be impractical to have military proceedings appealed to a non‐military controlled body. The military has the subject matter expertise under the law of war. It has custody of the detainees. And it has always conducted our war crimes trials in the past.135 Though the CSRT process has its inherent problems, it would be unfair to not acknowledge that any review panel would face similar challenges. Reform should consider the ways in which we could increase the CSRT process. The first reform of CSRTs should have to do with the definitions for ‘unlawful combatants’. A more fair system for reviews could incorporate the US federal courts definitions for ‘unlawful combatants’. Because the President’s definitions included people who were not war criminals based on federal court definitions, using the statutorily defined and less encompassing terms for ‘war criminals’ would be preferable. Moreover, to further insulate Executive Branch control, Congress should reform the DTA. A reform that placed the power over review in a non‐executive branch official rather than in the Secretary of Defense could aid in this insulation. With these measures, the Executive Branch would no longer hold unchecked power over the review process. 134 Ibid., Establishing a Constitutional Process, p. 11. 135 Ibid., Establishing a Constitutional Process, p. 54. 76
In Trial Exceptions: Classified Information In addition to the reforms on CSRTs, the UCMJ would be impractical for military tribunals in one other respect. In order to avoid certain classified information from being unnecessarily exposed, tribunals should have provisions allowing the government to not disclose certain classified information to terrorists. In order to ensure that the defense is not put at a disadvantage, defense counsel would still have access privileges. Mr. Bradbury explained how the application of the UCMJ would call for full disclosure, “As to classified information generally at trial, the procedures under Article 46 of the UCMJ require the prosecution to share with the defendant any classified information that the prosecution intends to use as evidence in the trial.”136 On the surface, it may not be entirely clear what a terrorist could do with classified information since they remained in government custody. Texas Senator John Cornyn described a situation in which sensitive information being passed through trial ended up harming our efforts, For example, al Qaeda has reviewed the military’s field manual to help its associates resist interrogation. Former New York terrorism prosecutor Andy McCarthy has written how he complied with the court requirements to turn over information to suspected terrorists, and that list was later used as evidence in another terrorism trial when it was learned that the list had been passed by al Qaeda associates through its network and was discovered in the Sudan.137 It would be vital to limit this provision with clear language in order to ensure that the restriction of certain evidence not be abused. The military commission that tried Salim 136 Ibid., Establishing a Constitutional Process, p. 64. 137 Ibid., Establishing a Constitutional Process, p. 64. 77
Hamdan gave some interesting insights to how tribunals actually functioned. The way tribunals had functioned, the defense had a very limited ability to challenge evidence rulings during the proceedings. Commander Swift felt the evidence accessible to the defense was too limited the way tribunals were functioning. “Given the handcuffs this puts on his counsel,” he noted, “the accused is really the only one that can dispute the evidence against him. Without knowing what the evidence is, the accused is left undefended. Yet the accused is not guaranteed even the most fundamental right, and that is, to know what the evidence is against him.”138 The kind of rules that we would need to establish in order to avoid these happenings can be found in the UCMJ. The provision for intelligence would be minor and would operate in such a way that the defense counsel would have access to the information. Commander Swift gave a specific account of how the restriction of evidence harmed the defense, The example I can give is that I was down at Guantanamo Bay to tell Mr. Hamdan about his decision. At the end of that meeting, he was taken back to his regular cell and then his belongings were searched, and the only thing they took were his notes on the questions that he was to answer as the client on how we were to proceed. In other words, the Government seized the entire strategy we had going forward. And it was the only document they took. And I did not see how that could possibly implication national strategy, although it does certainly implicated how we will conduct the trial.139 Obviously such conduct would never be allowed in courts‐martial or civilian court proceedings. The application of the UCMJ would ensure that kind of conduct would be impossible. Although slight alterations to the UCMJ would be necessary, the deviations would have substantial justifications and they would be very limited. With the application 138 Op. cit., Proceedings of a Military Commission, p. 31. 139 Ibid., Proceedings of a Military Commission, p. 31. 78
of the UCMJ, military commissions would certainly fulfill the Common Article 3 violations and we would again have normally constituted full and fair trials. Although the majority of the testimony suggested an application of the UCMJ with minor alterations similar to those described above, Congress decided to make far more significant changes leaving the military tribunals much of the power that had been abused before. Instead of considering the proposed changes by legal scholars and the various experts called in for the hearing, Congress made a stark departure from what was discussed and debated. In the end, rather than using the Supreme Court’s ruling in Hamdan to restore American values, the resolution that Congress came up with sanctioned the way military commissions had been operating and went far in nullifying the Court’s holding. We will briefly look at the Military Commissions Act of 2006 and then its reform in 2009 to see how they would affect tribunals going forward. The Military Commissions Act of 2006 The Military Commissions Act of 2006 was based on general courts‐martial procedures and was signed into law on October 17, 2006, allowing military tribunals to again function legally. The stated purpose of the Military Commissions Act was, “To authorize trial by military commission for violations of the law of war, and for other purposes.”140 The Act succeeded in its stated goal, however, it did so with little reform to the procedures the President had originally authorized. Senator Leahy, one of the strongest critics of the way tribunals had functioned, was similarly critical of the MCA, “passage of H.R.6166, the ‘Military Commissions Act of 2006’, was stunning. Torture is now officially 140 US Government, House, S 3930 ES, p. 98. 79
legal, it provides amnesty for any ‘US personnel’ who have tortured people in the past, it allows for anyone ‐‐ American citizens included ‐‐ to be deemed ‘enemy combatants’ and it suspends Habeas Corpus for anyone, setting up an entirely new system of ‘military commissions’ which will be utilized by the President at will, the decisions of which can not be reviewed by any court.” The Act certified many of the procedures that the Supreme Court had specifically sought to overturn with the Hamdan ruling. Limitations on the UCMJ included the restrictions against; speedy trial rules, compulsory self‐incrimination, pretrial investigation procedures, the entirety of chapter 47 including any precedent encompassed in it.141 By far the most controversial aspect of the Act was the provision it made in reference to Common Article 3, (f) Status of Commissions Under Common Article 3— A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions. (g) Geneva Conventions Not Establishing Source of Rights— No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.142 The provision stated that it was in accordance with Common Article 3, but did not make the procedural changes that the Supreme Court stated violated the Geneva Conventions. By not legislating to the standard, the Act in essence nullified one of the key findings in Hamdan; that the war on terror did not constitute an international conflict and that the conflict with 141 Ibid., S 3930 ES, pgs 4‐9. 142 Ibid., S 3930 ES, p. 7‐8. 80
al‐Qaeda was bound to Common Article 3. The Act did simply gave lip service to the Court, exactly what so many had advised against. Under judicial scrutiny, several of the restricting provisions fell, eventually leading to the Military Commissions Act of 2009. The MCA of 2009 still fell short of the holding in Hamdan, but steps in the right direction. The American Civil Liberties Union said the bill made substantial improvements, but contended that aspects of the bill remain unconstitutional, While this bill contains substantial improvements to the current military commissions, the system remains fatally flawed and contrary to basic principles of American justice. While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.143 Without the basic standards that we would expect from our military or civilian justice system, military tribunals as they stand are not justified. Allowing for only partially fair proceedings is an insult both to our nations values and to the rule of law. 143 Belczyk , Jaclyn. "House passes amendments to Military Commissions Act". Jurist. 3/17/10 <http://jurist.law.pitt.edu/paperchase/2009/10/house‐passes‐amendments‐to‐military.php>. 81
Where We Stand Today We stand at a difficult crossroads today with military tribunals. The temptation to continue to use tribunals as they exist would allow for quick trials and likely more convictions, but as we have seen, these advantages come at the expense of justice. Even if military tribunals were used, it remains uncertain whether or not the Supreme Court would overturn their findings again. How we choose to balance this equation between national security and justice will say a lot about of nation’s values and goals. As I discussed in the reform chapter, the application of the UCMJ to military tribunals would strike a fair balance between protecting our national security and the fairness of proceedings. With the application of the UCMJ, foreign enemies would be afforded to the same standards of justice we use for our own service members. Although an arguably higher standard for justice would be found in our civilian courts, the minimum standard that would be just to apply would be a military trial that met the standards we provide for our own service members. The loose standards that have governed military commissions have resulted in rulings that have been both controversial and questionable. The execution of the Nazi saboteurs was a glaring example of a suspect decision being passed down by a military tribunal. It was clear in this case that our courts are vulnerable to fear and political pressure. In a state of war, the climate of fear lead to the degradation standards for justice and can limit the Supreme Court’s willingness to intervene. The best way to prevent unfair proceedings from occurring in the future is to legislate clear standards solving the for the injustices of the past. The Supreme Court had the opportunity to limit the institution of military tribunals in Ex Parte Quirin, but it failed to do so. 82
In the War on Terror, the sweeping jurisdiction claimed under Military Order 1 allowed for over 800 ‘enemy combatants’ to be detained. In the ensuing years, charges were brought against just five of the hundreds held. The reason for this woeful clearance rate was because of the fundamentally flawed nature of the military tribunals that were supposed to bring these people to justice. As we saw in the Hamdan case, the procedures and conduct of the military tribunals were in violation of international law and thus the tribunal’s findings could not be upheld. Standards for tribunal proceedings were set to such a low level that they violated the minimum standards outlined in the Geneva Conventions. Despite their failure to satisfy some of the most basic protections and guarantees provided by the Constitution, that has not stopped Presidents from using tribunals, nor the U.S. Congress from authorizing them, as in the Military Commissions Act of 2006. With Congress’s enactment of the MCA, the Supreme Court’s rulings in Hamdan v Rumsfeld and the other challenges to the Bush tribunals were nullified. The executive once again was given unfettered discretion to utilize military commissions. With the prospect of using military tribunals still on the table, the President has an important decision to make. Attorney General Eric H. Holder Jr. has repeatedly emphasized that if the administration did use military commissions, they would be constructed in such a way to provide “a maximum amount of due process.”144 I urge the President to resist the temptation of using military tribunals. As they stand, military commissions not only violate the Geneva Conventions, but they are designed in such a way that they continue to invite unfair outcomes. 144 Eley, Tom. "Obama administration indicates military commission trials to resume". WSWS. 3/17/10 <http://www.wsws.org/articles/2009/may2009/mili‐m04.shtml>. 83
If President Obama decides to use military tribunals to try Khalid Sheikh Mohammad and other terror suspects, it would be a blow to American values and would result in less fair proceedings. Regardless of the adjustments that could be made to military tribunals, without comprehensive reform, trials would fall short of affording defendants the rights we should expect as a nation. President Obama has repeatedly professed his commitment to being a nation under the rule of law. At present, a decision to use military tribunals would be incompatible with the aspiration. As the debate on military tribunals continues and President Obama deliberates on whether their utilization is justified, we should not lose sight of the past. As we have seen, the historical utilization of military tribunals has resulted in controversial verdicts and conduct that does not conform to our normal standards of justice. Both from a legal standpoint as well as with regard to fairness, military tribunals remain unjustifiable. We would not sacrifice our national security, nor allow war criminals to walk free by abandoning the use of military tribunals. With reform, specifically by applying the UCMJ to military tribunals, we would demonstrate that we still hold ourselves to a higher standard. Such a reform would ensure fair proceedings and present a strong balance between national security and justice. In providing a full and fair trial, even for those who would do us harm, President Obama would not only prove that we are a nation under the rule of law, but would show once again that the United States is ready to lead on the world stage. 84
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Works Cited Babington, Charles. "Critics of Guantanamo Urge Hill to Intervene". The Washington Post. 2/15/10. <http://www.washingtonpost.com/wpdyn/content/article/2005/06/15/ AR2005061500823.html>. Barr, John. "Lawmakers criticize Bush's order for military tribunals". CNN. 3/15/10. <http://archives.cnn.com/2001/US/11/16/inv.tribunals/index.html>. Belczyk , Jaclyn. "House passes amendments to Military Commissions Act". Jurist. 3/17/10. <http://jurist.law.pitt.edu/paperchase/2009/10/house‐passes‐amendments‐to‐
military.php>. Bush, George. "Military Order of November 13, 2001". Federal Register. 2/15/10. <http://www.fas.org/irp/offdocs/eo/mo‐111301.htm>. Eaves, Elisabeth. "President Bush Signs Executive Order Authorizing Military Tribunals". Human Constitutional Rights. 2/15/10. <http://www.hrcr.org/hottopics/ tribunal.html>. Eisenberg, Arthur. "Op‐Ed: NYCLU Responds To President's Counsel Gonzales on Military Tribunals". NYCLU. 3/10/10. <http://www.nyclu.org/oped/op‐ed‐nyclu‐responds‐
presidents‐counsel‐gonzales‐military‐tribunals>. Eley, Tom. "Obama administration indicates military commission trials to resume". WSWS. 3/17/10. <http://www.wsws.org/articles/2009/may2009/mili‐m04.shtml>. Fisher, Louis. Military Tribunals And Presidential Power: American Revolution To The War On Terrorism. Lawrence, Kansas: University Press of Kansas, 2005. Fisher, Louis. Nazi Saboteurs On Trial: A Military Tribunal And American Law. Lawrence, Kansas: University Press of Kansas, 2003. 86
Glaberson, William. "U.S. May Revive Guantánamo Military Courts". The New York Times. 3/10/10 <http://www.nytimes.com/2009/05/02/us/politics/02gitmo.html?_r=2>. Goldman, Jerry. "U.S. Supreme Court Media". Oyez. 3/17/10. <http://www.oyez.org/cases/2000‐2009/2005/2005_05_184/opinion>. Gonzales, Alberto. "Martial Justice, Full and Fair". The New York Times. 1/26/10. <http://www.nytimes.com/2001/11/30/opinion/30GONZ.html?pagewanted=1>. Heneroty, Kate. "Detainee Treatment Act of 2005". Jurist. 3/17/10. <http://jurist.law.pitt.edu/gazette/2005/12/detainee‐treatment‐act‐of‐2005‐
white.php>. Mahler, Jonathan. "Hamdan: Guantánamo's Mystery Man". Time. 3/17/10. <http://www.time.com/time/nation/article/0,8599,1825334,00.html>. Mahler, Jonathan. The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. New York, NY: Farrar, Straus and Giroux, 2008. Martinez, Louis. "Obama Order to Shut Gitmo, CIA Detention Centers". ABC News. 3/17/10 <http://abcnews.go.com/Politics/LawPolitics/story?id=6707095&page=1>. Northam, Jackie. "Q&A About Guantanamo Bay and the Detainees". San Francisco Chronicle. 2/20/10. <http://www.npr.org/templates/story/story.php?storyId=4715916>. Peters , Gerhard. "The American Presidency Project". 2/25/10. <http://www.presidency.ucsb.edu/ws/index.php?pid=16281>. Savage, David. "Bush Order for Military Tribunals Gets Several Thumbs Down". Los Angeles Times. 3/10/10. <http://pqasb.pqarchiver.com/latimes/access/90100732.html>. Sorensen, Harley. "Scalia Could Save Us From Bush's Kangaroo Court". San Francisco 87
Chronicle. 2/18/10. <http://www.commondreams.org/views01/1120‐08.htm>. Wang, Tova. "The Military Tribunals Debate". The Century Foundation. 2/17/10. <www.tcf.org/Publications/HomelandSecurity/wang‐tribunals.pdf>. Wolfowitz, Paul. "Center For National Security Studies ". CNSS. 3/10/10 <http://www.cnss.org/wolfowitzstmt.htm>. "Abstention Doctrine". 3/17/10. <http://law.jrank.org/pages/3927/Abstention‐Doctrine.html>. American Journal of International Law, 3/17/10. <http://www.jstor.org/stable/4126328?seq=5>. p. 992. "International Humanitarian Law ‐ Treaties & Documents". ICRC. 3/17/10. <http://www.icrc.org/ihl.nsf/WebART/375‐590006>. "Lawmakers criticize Bush's order for military tribunals". CNN. 3/10/10. <http://archives.cnn.com/2001/US/11/16/inv.tribunals/index.html>. News Transcript, "Defense Department Background Briefing on the Combatant Status Review Tribunal". Global Security. 3/17/10. <http://www.globalsecurity.org/ security/library/news/2004/07/sec‐040707‐dod03.htm>. The Oyez Project, Hamdi v. Rumsfeld, 542 U.S. 507, 2004. <http://oyez.org/cases/2000‐2009/2003/2003_03_6696>. The Oyez Project, Rasul v. Bush, 542 U.S. 466, 2004. <http://oyez.org/cases/2000‐2009/2003/2003_03_334>. "Proceedings of a Military Commission". U.S. Government, 2007. United States, 548 U.S. 557 (2006). Hamdan v. Rumsfeld vols. 2006. United States Senate, Committee On The Judiciary. "548 U.S. 557". Hamdan v. Rumsfeld: 88
Establishing a Constitutional Process. 2006. "Unlawful combatant". Wikipedia. 1/20/10. <http://en.wikipedia.org/wiki/Unlawful_combatant>.