Terrorism April 19, 2005

1. Terrorism April 19, 2005

2. Con Law I - Manheim

3. Types of military tribunals • Courts martial • War crimes tribunals • Military commissions • Historically used for "unlawful" combatants Con Law I - Manheim

4. 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”) • Force of Law • Reviewable by federal courts Con Law I - Manheim

5. Military Order of Nov. 13, 2001 Note how these findings resemble those found in legislative acts • 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 …” Con Law I - Manheim

6. Who subject • Any person not a US Citizen whom • That the president (or delegate) has reason to believe • Is a member of al Qaida, • Has committed or aided an act of int’l terrorism, or • Has harbored any of the above Con Law I - Manheim

7. Detention • At an appropriate location • Treated humanely … in accordance with such other conditions as SoD prescribes Con Law I - Manheim

8. 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” Con Law I - Manheim

9. Trial – Military Tribunal • Appeal and review • by SoD or President • Upon recommendation by 3 officer review panel • Sentence • May include life imprisonment or death Con Law I - Manheim

10. 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 Con Law I - Manheim

11. 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” Con Law I - Manheim

12. 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” Con Law I - Manheim

13. 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”? • Apply to Taliban? Al-Qaeda? Con Law I - Manheim

14. 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 Con Law I - Manheim

15. 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? Con Law I - Manheim

16. Ex parte Quirin • Congressional Authorization • 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.” • 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” Con Law I - Manheim

17. 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 Con Law I - Manheim

18. 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” Con Law I - Manheim

19. 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 Con Law I - Manheim

20. 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? Con Law I - Manheim

21. 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? Con Law I - Manheim

22. 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 NPR Story on Quirin Case Con Law I - Manheim

23. Challenging Detentions • Habeas corpus clause, Art. I, § 9, cl. 2: • “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.” • Habeas corpus statute, 28 U.S.C. § 2241 • “(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” Con Law I - Manheim

24. Challenging Detentions • Hamdi v. Rumsfeld (2004) • “An unchecked system of detention carries the potential to beocme a means for oppression and obuse of others…” • Justice O’Connor (majority opinion) • “The Executive’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial review.” • Justice Thomas (dissent) • Link to SCt. briefs in Guantanamo cases • Amicus brief by Fred Korematsu Con Law I - Manheim

25. Hamdi v. Rumsfeld (2004) • Legality of Military Detention and Trial • Due Process issues (incl. 5th/6th amendments) • Separation of Powers issues • Military (Executive) Order of Nov. 13, 2001 • What is an Executive Order? • Which Jackson Zone/Std of Review applies? • Zone 1: congress has authorized pres. action • Authorization for Use of Military Force • Zone 2: pres. acts amid cong’l silence • Zone 3: pres. acts against cong’l disapproval • Non Detention Act (1971) Con Law I - Manheim

26. Hamdi v. Rumsfeld (2004) • O’Connor says Zone 1 • Authorization for Use of Military Force • Capture and detention are incidents of war; an exercise of “necessary and appropriate force” • As such, AUMF “is explicit cong’l authorization for the detention of individuals” even though it • never mentions detentions • doesn’t mention US citizens • Souter dissent • How should AUMF and NDA be reconciled? • AUMF written in general terms; NDA in specific terms Con Law I - Manheim

27. Hamdi v. Rumsfeld (2004) • Souter dissent • Why should NDA be read broadly and AUMF narrowly? • Madison: “The constitution supposes, what the history of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature." • George Mason: “was agst giving the power of war to the Executive because not safely to be trusted with it [he was] for clogging rather than facilitating war, but for facilitating peace.” • Magna Carta: king must obey “the law of the land” Con Law I - Manheim

28. Hamdi v. Rumsfeld (2004) • Plurality: Pres. in Zone 1; no SoP problems • What if Zone 3? • Can Pres. ignore Non-Detention Act? US says yes. • Is detention & trial of combatants a matter entrusted solely to President, with no shared power in congress • What if in “a moment of genuine emergency”? • What if Zone 2? • Scalia • Citizens can only be detained per charges (treason) • Hamdi entitled to HC unless suspended (not done here) • Thomas • Inherent power to do whatever nat’l security requires Con Law I - Manheim

29. Con Law I - Manheim

30. Hamdan v. Rumsfeld (DCDC 11/8/04) • Writ HC against military trial • US prisoner since 2001; charges filed July ’04 • Hamdan claims military commissions violate • SoP; UCMJ (courts martial); Geneva & Law of War • DC grants writ <opinion> • Congress authorized military comm’ns only for • offenders or offenses that by statute or by the law of war may be tried by military commissions • Geneva requires ct. martial to determine POW status • No explicit or inherent pres. power beyond this • DoD web site on Guantanamo Detainees Con Law I - Manheim

31. Interrogation • War Crimes Act (18 USC § 2441) • Prohibits commission of “war crime” • defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949 • Bush Memorandum (Feb. 7, 2002) • “none of the provisions of Geneva [convention] apply to our conflict with Al-Qaeda” • “I have authority under the Constitution to suspend Geneva as between US and [Taliban]” • White House Counsel “Torture Memo” (Bybee) • DoD Working Group on Detainee Interrogations • Table of Approved Interrogation Techniques White House Counsel Memo on Geneva Conv. Con Law I - Manheim

32. Con Law I - Manheim

33. “You may, by force of arms, attack, subdue, and take all Ships and other Vessels whatsoever carrying Soldiers, Arms, Gunpowder, Ammunition, Provisions or other contraband Goods, to any of the British Armies or Ships of War employed against these Colonies” John Hancock, Pres. 2d Continental Congress Con Law I - Manheim

34. Con Law I - Manheim