In Defense of Military Commissions

Consciously or not, on September 11, 2001, all Americans realized that things would never be the same. Collectively, we understood that the United States faced an unprecedented threat, a threat that would alter not only the way we live our lives but the way in which the government protects our lives.

Over time, however, the daily inconveniences wrought by September 11th, such as long waits at airports, have become routine, so routine that when coupled with the absence of subsequent attacks on American soil, some Americans have become complacent and no longer concerned about future acts of terrorism. Yet the threat posed by al Qaeda and other terrorists remains real.

This complacency rings true despite our successes in capturing many al Qaeda leaders, destroying their bases of operations in Afghanistan, and preventing domestic attacks. Al Qaeda is a fluid, adaptable, and resourceful enemy that actively continues to plan attacks against American interests-whether they are our allies abroad or targets within the United States. Indeed, we continue to get specific intelligence about planned al Qaeda attacks. This much is evidenced by the heightened levels of security that, although color coded and ignored by most Americans, actually reflect a true threat. Al Qaeda's previous practices are telling; they bespeak of their patience and willingness to spend years to plan, train for, and then execute an attack. The United States is at war with this unconventional enemy.

In response, President Bush has taken strong and difficult actions to protect American lives and preserve the long-term survival of this country. Nevertheless, some people have grown uncomfortable with the balance struck by the government between protecting our country and preserving individual freedoms. These dissenters are uneasy with the idea of applying the laws of war to enemy combatants waging war against this country, especially those enemy combatants who are American citizens. Citing the necessity of protecting our reputation in the international community, our critics insist that these combatants should receive the benefits of the rules and procedures of our criminal justice system, those tried and true methods that we invoke to deal with regular criminals such as car thieves and drug dealers. They demand that our judges-though untrained in executing war plans-have a substantive role in the war decisions of our Commander-in-Chief. In their view, every American citizen, even a citizen who, as a member of a terrorist group, wages war against our sons and daughters, is entitled to the rules and presumptions of the criminal justice system. They think it obvious that even foreign fighters, captured overseas and detained by our military outside the United States, have a right to challenge, in our civilian courts, the scope and terms of their detention.

Respectfully, these propositions are not at all obvious as a matter of law. To the contrary, they lack any valid foundation in domestic or international law and, instead, evince a fundamental misunderstanding of the nature of the threat this country faces. America confronts a lethal but unfamiliar enemy, an enemy that stays hidden in our neighborhoods, lying in wait to attack our citizens, including our own detractors. In short, this is a real, not a metaphorical, war. The criminal paradigm, with which we are all so familiar, is thus inapplicable.

Certain propositions, on the other hand, are clear. Our enemies are not constrained by civilian authority or by any government, and nor are they inhibited by ordinary normative and human concerns for their own safety or lives. Many are fanatics who believe that their greatest power lies in their disregard for human life and their willingness to resort to indiscriminate violence. Our enemies do not love liberty; they neither respect law nor cherish life.

The brutal attacks of September 11-which killed nearly three thousand people from over ninety countries-were not only crimes, but they were acts of war. While al Qaeda is not the traditional armed force of a single nation state, it is clearly a foreign enemy force. Al Qaeda has doctrinal direction, political goals, training, financing, and members in countries throughout the world who are committed to waging war against the United States. Al Qaeda has not only attacked the heart of America, killing thousands, but it has attacked our embassies, our warships, and our government buildings.1

As a practical matter, the present state of war is not in dispute, not by the United Nations Security Council which recognized the right of states to act in self-defense by passing resolution 1368 on September 12, 2001,2 nor by the members of NATO or the Rio or ANZUS treaties who have unanimously invoked their treaty clauses regarding collective defense from armed attack,3 and not by the United States Congress which acted to support the President's use of all necessary and appropriate military force against those responsible for September 11th.4 Even our enemy itself, though unconventional, recognizes that we are in a state of war. In fact, in June 2002, Suleiman Abu Gheith, spokesman for al Qaeda, wrote that '"[w]e have the right to kill 4 million Americans-2 million of them children-and to exile twice as many and wound and cripple hundreds of thousands.'"5

Traditionally, the criminal justice system has addressed society's need to protect itself from individuals who seek to harm others, and law enforcement was the primary tool used to combat terrorism. September 11, however, made it clear that al Qaeda was more than a criminal enterprise. It prompted the President to craft a response that drew on all available tools, including the military, our intelligence agencies, diplomacy, and financial sanctions-not just the criminal justice system. The government's use of these tools during times of war has strong precedent in law and history. Those who label these actions as illegal or unconstitutional are generally looking at the wrong set of laws. Critics look to the criminal code to base their assertions, when in fact it is the law of war that is controlling. The laws of war, in turn, are not so static that they cannot find application to the current situation.

Article II of the United States Constitution gives the President the responsibility to defend America: "The President shall be the Commander in Chief of the Army and Navy of the United States . . . ."6 In 1862, the United States Supreme Court held, "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority."7 There is no further requirement for a declaration of war under domestic or international law in order for a state of war to exist. Additionally, one week after the September 11th attacks, Congress expressly confirmed the President's authority to conduct the war with a joint resolution:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.8

Presidential authority is at its height when he acts with express legislative approval.9 Furthermore, the United Nations security Council's Resolution 1368 condemned the attacks as a threat to international peace and security,10 and, under NATO, an attack against a NATO member is an attack against all members.11 Al Qaeda, its members, agents, and associates, as well as any other terrorist organization that joins this armed conflict, are thus subject to the laws and customs of war.

Under such laws and customs, there is ample authority to detain captured enemy combatants until the end of hostilities. It is a recognized principle that, in order to keep detainees from rejoining the battle, enemy combatants may be captured and detained for the duration of the conflict.12 In the 1942 case of Ex Parte Quirin,13 the United States Supreme Court unanimously confirmed this authority when seven Nazi saboteurs were captured in New York and Florida.14 Of those seven, at least one was a United States citizen.15 The United States has detained enemy combatants in every modern war in which it has participated. In World War II, the United States detained almost 500,000 enemy combatants within the United States, including some United States citizens. Once again, the Court upheld the government's authority to do so.16 Indeed, based upon this long-standing precedent, United States' courts have already confirmed this authority in the case of enemy combatants detained at the Charleston Naval Brig.17

Additionally, the Court in Ex Parte Quirin defined the concept of an enemy combatant by stating that a person may be seized and held even if he has "not actually committed or attempted to commit any act of depredation or entered the theater or zone of active military operations."18 The important factor here is whether the person has become a member of, or associated himself with, hos tile enemy forces, thereby attaining the status of a belligerent. This means that individuals captured on the battlefield are enemy combatants, and those captured off the battlefield, whose activities are associated with hostile enemy forces, may be considered a belligerent, and likewise detained as an enemy combatant until the end of hostilities. Both foreigners and United States citizens whose activities and associations rise to the level of belligerency may be detained as an enemy combatant.

One should further keep in mind that the detention of enemy combatants is preventive in nature, not criminal. Detention is used to remove an individual from conflict and prevent him from engaging in further hostilities. In accordance with the laws of war, enemy combatants may be questioned, and, because detention as an enemy combatant is preventive and not criminal, they are not entitled to legal representation. In fact, even members of hostile forces who qualify as prisoners of war under the Geneva Convention are not entitled to legal representation to challenge their detention.19 If a detained enemy combatant is going to be charged criminally, however, he will be provided a lawyer at that point, as would any similarly charged person.

In order to clarify the current actions of the Department of Defense, it should be noted that the detained enemy combatants at Guantanamo Bay are not entitled to POW status pursuant to the Third Geneva Convention.20 Under the Geneva Convention, an Article 5 tribunal is only required in the event that any doubt arises as to a person's status.21 In February 2002, the President determined that al Qaeda and the Taliban were not entitled to POW status.22 The President's reasoning was sound. Al Qaeda is not a state, it is not a party to the Geneva Convention, and it has no right to participate in international armed conflict.

The Geneva Convention would apply generically to Afghanistan, but not to the Taliban, who are not entitled to POW status because they are not the regular armed force of a nation-state. Nor can al Qaeda be considered a militia as described under the Geneva Convention as they are not "commanded by a person responsible for his subordinates behavior;" their members do not wear a "fixed, distinctive sign recognizable at a distance;" they do not necessarily carry arms openly; and, lastly, they most certainly do not "conduct[] their operations in accordance with the laws ... of war."23 To give those who do not qualify as POWs the same status as those who obey the laws of war would undermine the law itself.

It should be noted that the original purpose of the Geneva Convention, like the law of war generally, was to avoid unnecessary civilian casualties and alleviate suffering during times of war. Those who obeyed the law of war and complied with the other factors demonstrating lawful belligerency were to be given POW status.24 Al Qaeda and the Taliban have demonstrated their intent not to comply with the laws of war; thus, they are not entitled to POW status.

Despite the fact that al Qaeda and the Taliban do not qualify for POW status, all detainees are treated humanely and in accordance with the principles of the Third Geneva Convention to the extent consistent with military necessity. All detainees receive three culturally appropriate meals per day, running water, medical care, time for exercise, showers and the opportunity to practice their religion.25

As mentioned earlier, under international law, enemy combatants may be detained until the end of hostilities. Despite the fact that international law allows for detention to this extent, the United States has no desire to detain any enemy combatant longer than is necessary. Detainees are continuously evaluated for their threat to the United States in the war on terror, their value in terms of intelligence to prevent future terrorist attacks, and their appropriateness for criminal prosecution.26 If a detainee is no longer a threat, provides no intelligence value, and would be appropriately prosecuted criminally, he or she will be released. To date, the United States has released 129 detainees from Guantanamo Bay, twenty-two others have been transferred for continued detention or trial in their country, i.e., seven to Russia, four to Saudi Arabia, one to Spain, one to Sweden, five to Great Britain, and four to France.27 There will be other detainees released in the future and some transferred to their respective countries for continued detention or possible prosecution.

Additionally, the Department of Defense recently announced its plan to set up an administrative review process for detainees.28 This procedure is to be independent from the prosecution proceedings.29 Through this process the necessity of detaining enemy combatants in the control of the Department of Defense at Guantanamo Bay would be reassessed at least annually. Additionally, each enemy combatant would have an opportunity to explain before an administrative review board comprised of three military officers why he should no longer be detained. Specifically, he would be permitted to explain why he is no longer a threat to the United States and its allies in the ongoing war on terrorism. The enemy combatant would be assigned a military officer to assist him in presenting this information to the review board. The board would also consider information from the detainee's government and family. Thus, this administrative review will further assist the Department of Defense in evaluating the need to continue to detain those in its custody at Guantanamo Bay.

Just as the United States has authority to detain enemy combatants, it may also try them for violations of the law of war before a competent tribunal. There are no existing international tribunals, however, that presently have such jurisdiction. Nevertheless, even if there were such an international tribunal, nation-states retain both the responsibility to obey the law of war and the authority to take appropriate enforcement action when the law is violated. The United States approaches these obligations seriously with the installation of its military commissions.

Military commissions traditionally have been the forum for violations of the laws of war. Commissions, for example, were used by George Washington in the Revolutionary War, and they were used during World War II in both the Pacific and European theaters. Protecting intelligence is a critical element when prosecuting war criminals. This is especially true when confronting the more nebulous war on terrorism. If intelligence information is compromised during trials, al Qaeda and affiliated terrorist organizations will use it to their advantage in planning future attacks and avoiding detection.

The United States Supreme Court in Ex parte Quirin30 not only unanimously upheld the detention of enemy combatants,31 but also upheld the President's ability to try them by military commission.32 Furthermore, the continued validity of military commissions has been reiterated by Congress with the passage of the Uniform Code of Military Justice, codified at 10 U.S.C. 821, et seq. section 821 states that "[t]he [Uniform Code of Military Justice] provisions establishing courts-martial does not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to . . . offenses that by statute or by the law of war may be tried" by such.33 Additionally, the Constitution has long been interpreted to confer unto the President the power to prescribe procedures applicable in military commissions.34

Pursuant to this authority, on November 13, 2001, the President signed a military order authorizing the Department of Defense to create military commissions to try terrorists who are not United States citizens.35 Following the President's November 2001 order, the Department of Defense General Counsel issued eight military commission instructions explaining the procedures to be used in military commissions.36 Although there are some procedural differences between military commissions, federal district courts, and courts-martial that take into account the unique battlefield environment, all three options are tools of justice that provide a full and fair trial. The difference lies in the fact that military commissions strike the perfect balance between providing a full and fair trial while at the same time protecting national security information.

Many of the same processes observed in civilian criminal courts or in military courts-martial are a part of military commissions, including:

* Presumption of innocence

* Proof of guilt beyond a reasonable doubt

* Trial before a panel of three to seven officers

* Ability of Defense to call witnesses and present evidence

* Defense Counsel may cross-examine witnesses and evidence

* No adverse inference for choosing to remain silent

* Nothing said to defense counsel may be used against an accused at trial

* Zealous representation by a military defense counsel free of charge and the option to retain a civilian defense counsel at no expense to the government

* Open proceedings except during the presentation of national security information

* Review of the record of trial by a three member review panel, which has been set up to provide an independent and impartial review37

One major difference, however, between military commissions and regular forums lies in the rules of evidence, which take into account the unique battlefield environment38 similar to other international tribunals. The need for separate rules is logical. During combat operations, our soldiers are not requesting search warrants for caves or reading captured enemy forces Miranda Rights. Not only would this jeopardize success on the battlefield, there is no requirement to do so under any international law. The rules of evidence in military commissions allow for the admission of evidence that has probative value to the reasonable person, though admission of any evidence must be consistent with providing for a full and fair trial.39 This enables both the prosecution and defense to admit evidence gathered on the battlefield. The rules are not designed to give one side an advantage over the other but, rather, to take into account the different nature of the crime(s) committed. Conducting war is not the same as law enforcement, and nor should it be.

As mentioned earlier, there is an automatic appeal procedure where each case is reviewed for material errors of law by a three member panel.40 Material errors of law include, among other legal findings, anything that deprives the accused of a full and fair trial.41 The pool from which each panel member is drawn consists of several jurists appointed by the secretary of Defense.42 Currently, the review panel pool is comprised of Judge Edward G. Biester, Jr., Judge Griffin Bell, Mr. William T. Coleman, Jr., and Chief Justice Frank J. Williams. Judge Griffin Bell is a former United States Attorney General and former United States Circuit Judge for the Fifth Circuit. Judge Edward G. Biester, Jr. is a judge in the Court of Common Pleas of Bucks County, Pennsylvania, Seventh Judicial District as well as a former Pennsylvania Attorney General and a former member of the United States House of Representatives. The Honorable William T. Coleman, Jr., is the former secretary of Transportation, and Chief Justice Frank J. Williams presides over the Rhode Island Supreme Court. These individuals were selected because they are well qualified by virtue of their experience, impartiality, and judicial temperament.

Other review panel members may be designated in the future. Review panel members are responsible for reviewing military commission records and may consider matters submitted by the prosecution and defense to determine if a material error of law occurred during the commission process.43 A review panel member may be permanently removed only for good cause.44 This includes, but is not limited to, physical disability, military exigency, and other circumstances that render the member unable to perform his duties.45 The review panel member normally will have a term of appointment for two years, with no possibility of reappointment.46 In practice, the review panel members decide who sits on which panel and who will be the president of the respective panel.

On July 3, 2003, the President determined that six individuals were subject to his Military Order.47 This did not mean these individuals must be tried; rather, it only meant that if these individuals were tried, military commissions would serve as the appropriate forum. Presently, the Appointing Authority has approved charges on four out of the six individuals:48 al Qosi from Sudan, al Bahlul from Yemen, Hicks from Australia, and Hamdan from Yemen.49 They are each charged with one count of conspiracy to commit war crimes.50 Hicks is charged with the two additional crimes of attempted murder by an unprivileged belligerent and aiding the enemy. Each of these individuals has an attorney. Additionally, Hicks has civilian defense counsel and an Australian Foreign Attorney Consultant.

Military Commissions are a continuing and evolving process, the final result being a full and fair trial. The military commission process is not yet perfect. No judicial system is. If necessary, adjustments will be made along the way. Furthermore, military commissions will be open to media coverage and scrutiny. Once people see commissions operate and observe the presumption of innocence, the burden of proof beyond a reasonable doubt, zealous defense by competent defense counsel, and the presentation of evidence and witnesses, critics will be forced to recognize that a full and fair trial is accorded.

Walter Laqueur, the noted author of many of the basic texts on terrorism, recently wrote:

Over the past centuries rules and laws of war have developed, and even earlier on there were certain rules that were by and large adhered to. But terrorists cannot possibly accept these rules. It would be suicidal from their point of view if, to give but one example, they were to wear uniforms or other distinguishing marks. The essence of their operations rests on hiding their identities. On the other hand, they and their well-wishers insist that when captured, they should enjoy all the rights and benefits accorded to belligerents, that they be humanely treated, even paid some money and released after the end of hostilities.51

The new emerging role of non-state actors as organized and trained terrorists is an incalculable threat to the citizens of the United States and the world. There is no international court empowered to address the horrific violations of the laws of war committed by terrorists against the United States on September 11th. We, as Americans, cannot turn our backs on our duty to bring international criminals to justice merely because there is no system in place to address these wrongs. It is our duty to establish a court of law that meets the international norms of a fair trial. We are taking risks by commencing these war crimes trials before the end of the conflict. Thus, our procedures must be consistent with our national security requirements. By instituting military commissions, the United States is meeting its international duty of providing each of the accused with a fair trial in a manner consistent with international norms.

FOOTNOTE

1. Al Qaeda has engaged in actual armed conflict against the United States and its interests since the early 1990s; and, furthermore, al Qaeda operatives have been linked to the bombing of a synagogue in North Africa, the Death of Daniel Pearl, Richard Reid's shoe bombing attempt, the attack on a French oil tanker in Yemen, and bombings in BaIi, Riyadh, and Madrid, Spain.

2. Res. 1368, U.N. SCOR, 56th Sess., at 1, U.N. Doc. S/1368 (2001).

3. See id. The Inter-American Treaty of Reciprocal Assistance (Rio) is an international security agreement adopted in 1947 by the United States as part of the Inter-American Conference. Inter-American Treaty of Reciprocal Assistance, Dec. 3, 1948, 62 Stat. 1681, 21 U.N.T.S. 77. The ANZUS is a security treaty adopted in 1951 by Australia, New Zealand and the United States. Security Treaty Between Australia, New Zealand, and the United States (ANZUS), Apr. 29, 1952131 U.N.T.S. 83.

4. S.J. Res. 23, 107th Cong. (2001) (enacted).

5. Paul Marshall, Four Million: The Number to Keep in Mind this November, National Review Online, August 27, 2004, available at http: //www. defenddemocracy.org/research_topics/research_topics_show.htm?doc_id= 236993 (quoting an article written by Suleiman Abu Gheith and taken from the alneda website).

6. U.S. CONST, art. II, 2, cl. 1.

7. The Amy Warwick, 67 U.S. 635, 668 (1862).

8. S.J. Res. 23, 107th Cong. (2001) (enacted).

9. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1959) (J. Jackson, concurring) (discussing presidential authority).

10. Res. 1368, U.N. SCOR, 56th Sess., at 1, U.N. Doc. S/1368 (2001).

11. North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246.

12. Ex Parte Quirin, 317 U.S. 1,12 (1942).

13. 317 U.S. 1 (1942).

14. Id. at 20-21.

15. Id. at 20.

16. See, e.g., Korematsu v. United States, 323 U.S. 214, 217-18 (1944); In re Territo, 156 F.2d 142, 147^8 (9th Cir. 1946).

17. See, e.g., Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004).

18. Quirin, 317 U.S. at 38.

19. See Third Geneva Convention, Oct. 21, 1950, art. 4, 75 U.N.T.S. 135.

20. See id.

21. Id. atari. 5.

22. Press Release, the White House, Statement by the Press secretary on the Geneva Convention, available at http://www.whitehouse.gov.news/releases /2003/05/20030507_18.html.

23. See id. at art. 4.

24. See id. Drawing on these general principles, the Court in Ex parte Quirin stated:

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Ex parte Quirin, 317 U.S. 1, 12(1942).

25. News Hour with Jim Lehrer: Update: The Detainees (PBS television broadcast, Jan. 22, 2003), available at http://www.pbs.org/newshour/bb/military /jan-june03/ detainees_l-22.html.

26. See Press Release, Department of Defense, Transfers of Five Detainees Completed (Aug. 2, 2004), available at http://www.defenselink.mil/releases /2004/nr20040802-1081 .html.

27. Id.

28. Memorandum from the Deputy secretary of Defense, to the secretary of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707 review.pdf.

29. Id.

30. Exporte Quirin, 317 U.S. 1 (1942).

31. Id. at 35.

32. Id. at 48.

33. 10 U.S.C. 821 (1998) (emphasis added).

34. Quirin, 317 U.S. at 27.

35. Exec. Order No. 57,833, 66 Fed. Reg. 57,833 (Nov. 13, 2001). The Secretary of Defense then issued Military Commission Order No. 1 in March of 2002. Department of Defense, Military Commission Order No. 1 (March 21, 2002), available at http://www.defenselink.mil/news/Mar2002/d20020321 ord. pdf.

36. 32 C.F.R. 10.1-10.8 (2004).

37. Id. 9.5.

38. See id. 9.9.

39. See id. 9.6(d)(1).

40. Id. 9.6(h)(4).

41. See id.

42. Id.

43. Id.

44. Id. 9.4(a)(3).

45. Id.

46. Id.

47. News Release, Department of Defense, President Determines Enemy Combatants Subject to His Order (July 3, 2003), available at http://www.defenselink.mil/releases/2003/nr20030703-0173.html.

48. Id. 9.2. The prosecution prepares charges for the approval of the appointing authority. Id. 9.4(b)(2)(ii)(A). The Appointing Authority then approves and refers the charges to a trial by the Military Commissions. Id. 9.4(b)(2)(ii)(B).

49. See Indictment of Hamdan, (July 14, 2004) available at http://www. defenselink.mil/news/Jul2004/d20040714 hcc.pdf; Indictment of Hicks, (June 10, 2004) available at http://www.defenselink.mil /releases/2004/nr200406ID0893.html; Indictment of al Qosi, (Feb. 24, 2004) available at http://www. defenselink.mil/news/Feb2004/d20040224AlQosi.pdf; Indictment of al Bahlul, (Feb. 2, 2004) available at http://www.defenselink.mil/news/Feb2004/ d20040224AlBahlul.pdf.

50. See supra note 47 and accompanying text.

51. Walter Laqueur, The Terrorism to Come, Policy Review, No. 126, available at http://www.policyreview.org/aug04/laqueur.html (last visited Sept. 28, 2004).

AUTHOR_AFFILIATION

BRIGADIER GENERAL THOMAS L. HEMINGWAY*

AUTHOR_AFFILIATION

* Brigadier General Hemingway is the Legal Advisor to the Appointing Authority for the Military Commissions. He originally delivered his defense of military commissions in a presentation to the National Conference of Law Reviews in San Antonio, Texas, on March 27, 2004. Neither the United States Government nor the Department of Defense, or any of its components, endorses The University of Memphis or The University of Memphis Law Review.