Military Tribunals Jan. 22, 2004

1. Military Tribunals Jan. 22, 2004

2. Types of military tribunals • Courts martial • War crimes tribunals • Military commissions • Historically used for "unlawful" combatants

3. Executive & Military Orders • Pursuant to President’s Art. II power • Power delegated by Congress • Core Art. II powers • Commander in Chief • Chief Executive (“he shall take Care that the Laws be faithfully executed”) • Inherent powers • Force of Law • Reviewable by federal courts

4. Military Order of Nov. 13, 2001 • Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism • Findings • “it is necessary for individuals subject to this order .. To be detained, and … tried … by military tribunals.” • “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the US district courts.” • “an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest …”

5. Who subject • Any person not a US Citizen whom • President (or delegate) has reason to believe • Is a member of al Qaida, • Has committed or aided an act of int’l terrorism, • Has harbored any of the above

6. Detention • At an appropriate location • Treated humanely … in accordance with such other conditions as SoD prescribes

7. Trial • By military commission [pursuant to] orders and regulations issued by SoD • Composition (3-7 military), venue and time • Admission of probative evidence "in a manner consistent with the protection of classified information“ • Some standard criminal procedures adopted • Conviction by 2/3 of commission • proof “beyond a reasonable doubt”

8. Trial • Appeal and review • by SoD or President • Upon recommendation by 3 officer review panel • Sentence • May include life imprisonment or death

9. Relation to Art. III courts • Military Tribunals are Art. II courts • No recourse to other courts • “the individual [tried] shall not be privileged to seek any remedy or maintain any proceeding … in (i) any court of the United States, (ii) any court of any foreign nation, or (iii) any int'l tribunal.” • Agency Courts in general • Upheld against SoP claims because, in part, decisions are reviewable by Art. III courts. • Ex. Bankruptcy, Immigration

10. Constitutional Issues • Substantive – Criminal Procedure Rights • 5th Amendment – • “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia” • “nor be deprived of life, liberty, or property, without due process of law” • 6th Amendment – • “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”

11. Constitutional Issues • Substantive – Criminal Procedure Rights • Habeas Corpus • Art. I, § 2, ¶ 1 – “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

12. Constitutional Issues • Structural – Separation of Powers • Does President “usurp” Art. III powers? • Art. III, § 2, ¶ 1: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the US, and Treaties” • Does Military Order obstruct Art. III functions? • Preclusion of review by Art. III courts • Does Military Order “usurp” power of Congress • Art. I, § 8, ¶ 11: “to declare war .. and make Rules concerning Captures on Land and Water” • ¶ 14: “to make rules for the Government and Regulation of the land and naval Forces”

13. Statutory Issues • Does Military Order of Nov. 13, 2001 conflict with Cong’l Resolution or other statutes? • Authorization for Use of Military Force (9/18/01) “Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled … “That the 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations or persons.“

14. Statutory Issues • Does Military Order of Nov. 13, 2001 conflict with Cong’l Resolution or other statutes? • 10 USC § 821.  “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 or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.”

15. United States ex rel. Quirin(1942) • German sabateurs tried by military court • appointed by President • created & rules prescribed by Executive Order • judicial review prohibited • convicted by military court of violating the law of war (int’l law) and Articles of War (domestic) • Sabotage and espionage • E.g., failure to wear “fixed and distinctive emblems”?

16. Ex parte Quirin • Can USSC even hear the case? • Court always has jurisdiction to determine its jurisdiction • If Order of July 2, 1942 (or Nov. 13, 2001) precluding judicial review were unconstitutional, the Court would have power to invalidate it • Compare Ex Parte McCardle

17. Ex parte Quirin • Congressional Authorization • Do the Articles of War authorize military courts? • Article 12 – makes triable by general court-martial "any other person who by the law of war is subject to trial by military tribunals." • Article 15 – “The Articles shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions.“ • Does the Law of War (incorporated by statutory reference) authorize military tribunals?

18. Ex parte Quirin • Congressional Authorization • J. Stone in Quirin: • “Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases” • Lawful vs. unlawful combatants • Article 82 – “Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifi-cations, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court martial or by a military commission, and shall, on conviction thereof, suffer death.”

19. Military Commissions • Constitutional Issues • Due Process • Ex parte Milligan: (armed uprising during Civil War) J. Davis: “Martial law … destroys every guarantee of the Constitution … Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.” • No military trials of citizens, at least if civilian courts are open

20. Military Commissions • Constitutional Issues • Due Process • Declaration of independence: causes for separation - • King George III has “affected to render the Military independent of and superior to the Civil Power.” • “depriving us, in many Cases, of the Benefits of Trial by Jury”

21. Military Commissions • Constitutional Issues • Due Process • Do military tribunals satisfy 5th, 6th, 14th amend’s? • Conviction by 2/3 vote of judges • Open or closed proceedings • Review by President pursuant to pardon power • Writ of habeas corpus suspended

22. Military Commissions • Constitutional Issues • Due Process • Do military tribunals satisfy 5th, 6th, 14th amend’s? • According to J. Stone, the right to trial by jury (see also Art. III, § 3) adheres only in “those cases in which it had been recognized by the common law.” • What theory of interpretation does J. Stone use here?

23. Citizens as Enemy Combatants • Any difference as far as Bill of Rights? • Stone – "We cannot say that Congress in preparing the 5th and 6th Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission" • Is this still good law?

24. United States ex rel. Quirin(1942) • Convictions upheld for violating the law of war • affirmed by per curiam immed. after arg • opinion issued 2 months after execution More on the Quirin Case

25. Detention & Military Trial • Cases to watch • Rasul v. Bush • cert. granted on the following question "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba." • Link to SCt. briefs in Guantanamo cases • Amicus brief by Fred Korematsu

26. Detention & Military Trial • Cases to watch • Hamdi v. Rumsfeld • Question presented: Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an “enemy combatant”? • Link to Petition for Certiorari