I generally don’t like military commissions at any time because they depart too greatly from accepted norms of due process, transparency, and rules of evidence. In terms of military justice, I much prefer courts-martial, which are used to try U.S. soldiers, or any other soldiers, who violate disciplinary regulations up to and including the laws of war. For example, Lt. Calley was court-martialed, and jailed, for the massacre at My Lai during the Viet Nam war.
Courts-martial use procedures that have been passed by Congress as U.S. statute under the Uniform Code of Military Justice. While the judge, the jury, and very often the attorneys are military, courts-martial basically comply with and give an approximation of the due process in a federal criminal court. The jury convicts on the basis of testimony and evidence, and the defendant has the right to appeal through the military justice system, with final appeal to the Supreme Court of the United States.
Military commissions are altogether different. They are established under the president’s order as commander-in-chief during times of war. There is usually a high degree of secrecy. The rules are written for the specific trial in question, so there are no permanent standards. Lawyers disagree as to whether there must be a declared war. President Lincoln used military commissions when there was no real Congressional declaration of war against the Confederacy. The last time we had a military commission was in 1942, during a declared war-the Ex parte Quirin case against eight German saboteurs who landed on our shores and were reported by two renegade members of the team. The proceedings were kept highly secret, not only to save the public from panic, but also to cover for the FBI, which had failed to discover the plot itself. The two saboteurs who cooperated were spared, the remaining six were executed.
I have doubts about the legality of the November 13 Military Order. In the first paragraph, President Bush establishes his authority to set up these commissions by citing: 1) his position as commander-in-chief, 2) the Use of Military Force Joint Resolution, and 3) Sections 821 and 836 of the U.S. Code, (which are sections 21 and 36 of the Uniform Code of Military Justice). Here we find a problem, because neither 821 nor 836 actually grant authority for the establishment of military commissions:
Section 821: Jurisdiction of Courts-martial Not Exclusive. “The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts or other military tribunals of concurrent jurisdiction with respect to offenders of offenses defined by statute or by the law of war that may be tried by military commission or by other military tribunals.”
Section 821 does not address the issue of who has the authority to set up military commission. All it says is that courts-martial and military commissions can have concurrent authority.
Section 836: The President May Prescribe Rules. Pre-trial, trial and post-trial procedures, including modes of proof for cases arising under this chapter triable in courts- martial, military commissions and other military tribunals, and procedures for courts of inquiry may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
Section 836 says nothing about giving the President authority to set up a military commission. It only allows him to make the rules. The statute suggests that, to the extent possible, you have to follow court-martial rules, which are almost as strict as criminal courts in terms of rules of evidence.
We must also ask whether military commissions fit the present circumstances. To me it seems odd to call terrorists “belligerents.” If you read Ex parte Quirin, military commissions can only try enemy aliens or belligerents. A belligerent is a technical term for a person who is at war of a national character, or a combatant in a civil war. Even if Al Qaeda says it is at war with the United States, the network doesn’t meet the Geneva Convention definition of “belligerent” because it is a non-state actor. To the extent you treat people who are terrorists as belligerents, you may need to give them certain special protections-as POWs, for example.
It is true that the detailed rules and procedures are still to be written. But as outlined in the extremely broad language of the Order, the procedures do not comport with the Fourth, Fifth, and Sixth Amendments of the U.S. Constitution, and with what international law requires generally. Even if there is authority for establishing these commissions-which I question–there is an urgent need for better procedures. There is tremendous concern that the administration will designate individuals for trial before the rules are written.
The Order applies not just to people in Afghanistan or other countries, but also noncitizens and permanent residents living in the United States. Domestic detainees could be subject to this Order. Going far beyond the Use of Force Joint Resolution [authorizing the president to pursue individuals connected to September 11], it is directed to “Individuals acting alone and in concert involved in international terrorism possess[ing] both the capability and intention to undertake further terrorist attacks against the United States” (Section 1 (c)). Innocent individuals may be arrested; the guilty may go free. How does that help punish and prevent the kinds of crimes that were committed on September 11?
While the Order does not explicitly call for the suspension of the writ of habeas corpus, there is no provision for the justifying the defendant’s detention. In any case, the president alone does not have the legal authority to suspend habeas.
An especially troubling part of this Order is that the president can simply designate an individual as a “belligerent” or “enemy alien,” and require that person to stand trial. The Order lacks any standard for designation. There is no grand jury hearing evidence, no Fifth-Amendment protection, and the death penalty with the concurrence of only two-thirds of the commission, which is all but unheard-of in capital cases. There is no substantive review of the proceedings, and absolutely no right of appeal. It appears likely that the administration will select or need to approve defense counsel. The issue of designation is therefore of the most extreme importance. Consider the way these things are likely to work. Administration officials have sketched out the scenario of a secret hearing on an aircraft carrier, in which the person gets convicted, is sentenced to death, gets executed, and is tossed off the ship into the sea. The government has said that at point it would notify the public that someone was executed and give the person’s name.
This Order makes clear that the administration considers these commissions as an extension of the battlefield. In fact, government officials have used that very language. I think the main purpose of these courts is to execute huge numbers of people.
If I were representing a client who had been detained pursuant to this Order, I would file a writ of habeas corpus right away, arguing that 1) the entire procedure is unauthorized; 2) this isn’t a war; 3) there is no legal authority to establish the tribunal, and 4) the rules of evidence don’t comport with due process. I would wager that, at that point, the government would argue that they were obliged by circumstance to cut off the writ of habeas corpus.
No one would deny that there must be a balance between the protection of intelligence and other sensitive information, and rules of evidence that are fair to the defendant. Should one allow hearsay, or evidence obtained under questionable or unknowable means? When does the defendant actually know the charges and the evidence against him? These are not easy questions. But they are not insoluble.
In criminal prosecutions, sensitive evidence can be protected through CIPA-the Classified Information Protection Act -¬which allows counsel to present summaries of documents in court, or before the judge in chambers. CIPA was used in the Timothy McVeigh case, and in the trial of the 1993 bombing of the World Trade Center. Both cases were prosecuted with protected classified information, and both ended in convictions. It is shocking to think that whole bodies of evidence would be thrown out on the basis that CIPA is inadequate. Many attorneys think the administration fears it won’t have sufficient evidence to convict, and so wants access to information that might be produced through drugs, torture, or other improper means. In U.S. courts, information obtained through torture is not allowed. The high degree of secrecy swirling around these tribunals is very troubling in this regard.
Wherever trials are held, defendants must be proven to be members of Al Qaeda. If the president simply designates whole groups of captured individuals for trial, and they are indeed tried in military commissions, we may not learn anything to help us protect ourselves in the future. Our country’s legal system is predicated on the idea of individual innocence or guilt. We don’t herd people en masse through our courtrooms-wherever those courtrooms may be located.
Let us say that U.S. forces capture an individual who signs a confession saying he is a member of Al Qaeda, and that he wants to blow up the Capitol. It seems to me that that is a perfect case for a criminal trial in the United States. For the sake of credibility-especially, perhaps, in the Muslim world-it is imperative to hold a public prosecution in order to establish the identities of the culprits, document their crimes, and prove their guilt. It would be complicated and expensive-especially if there were many individuals to be tried. But delegations from many countries could observe the proceedings, and verify for themselves that the trials were authentic, not for show.
That said, my strong preference is to treat the attacks of September 11 as a crime against humanity-not as a war crime (for the reasons I alluded to earlier) and not as terrorism. “Terrorism” has yet to be adequately defined in international law. A slippery designation, “terrorism” can be applied to a variety of actions, and very often is subject to political manipulation. Crime against humanity is codified as the mass and systematic killing of civilians by any individual or group; there is no need for a state actor. The definition comports perfectly with the facts of September 11.
My favorite recourse would be for setting up an UN Ad Hoc tribunal along the lines of those established for Rwanda and the former Yugoslavia. A crime against humanity is an international crime with universal jurisdiction, so it follows that, even though the attacks happened on U.S. territory, it was a crime against the whole world. The victims were citizens of over a hundred countries; Al Qaeda operates in about sixty nations. The prosecution should have international support, and the dignity of UN sponsorship.
The attacks of September 11 were a supreme injustice. Our response must be one of rigorous and transparent justice.