Survey of Military Law Military Commissions

1. Survey of Military Law Military Commissions Week 5 Lt Col Jennifer Rider

2. Let’s Review Status • POW (Common Art 2 & 4, GPW) • “right kind of person” • Armed Forces of a party and militias/resistance forces • Command, distinctive insignia, arms openly, LOW • Also … • Detained Personnel (contractors, reporters, civilian members of air crews, persons accompanying the force) • Retained Personnel (medics, chaplains) • “right kind of conflict” • Declared War • International armed conflict (between two or more parties) • Conflicts against racist regimes colonial domination or alien occupation (Protocol I expansion) • Importance • Once captured, no longer a target • Receives combatant immunity • Protected under Geneva Conventions • Repatriation

3. Let’s Review Status • If I’m not a POW, what am I? • Protected Person/Non-Combatant • Civilians not taking part in hostilities, medical personnel, chaplains, and those out of combat (POWs, wounded, sick and shipwrecked) • Unlawful Combatant/Enemy Combatant/Unprivileged Belligerents • Spies, Saboteurs or civilians who take up arms • Not entitled to POW status and may be prosecuted under the domestic law of the captor

4. Right Person? Right Conflict? NO YES POW Held until Cessation Of Hostilities Repatriated Enemy Combatant Unlawful Belligerent Combatant Immunity Detained LOAC Viol? War Crime? LOAC Viol? War Crime? Released to own Country for Prosecution US Military Commission Int’l Criminal Tribunal UCMJ Own Country Int’l Criminal Tribunal US Civilian Court

5. War Crime v. LOAC Violation • General Def: Any violation of LOAC • Nexus between act and some kind of conflict • Grave Breaches v. Other Violations • Owning State v. International Tribunal • International law generally places obligation only on “states” • LOAC different • Individual Responsibility • Command Responsibility • Punishment … Generally Speaking • International Tribunals • Ad Hoc (WWII, Rwanda, Yugolsavia) • Permanent (ICC) • National Laws • UCMJ • Federal Statute

6. Prosecution of War CrimesInternational Tribunals • World War II • 24 German senior leaders - Nuremberg • 28 Japanese leaders in Tokyo before IMTs • Thousands of trials in national courts, British military courts and US military commissions • Defined by the UN Tribunal • Int’l Mil Tribunal (Nuremberg) • Crimes against Peace • Violations against Laws and Customs of War • Crimes against Humanity • Conspiracy as well • Post WWII • Significant codification of specific international rules pertaining to trial and punishment of those committing “grave breaches” of the conventions • Vietnam - US soldiers tried by US courts-martial • Internal and civil wars outside grave breached provisions of 1949 convention • No effort to prosecute Cambodia, Uganda and Persian Gulf War (1990) violators

7. Prosecution of War Crimes • Other International Ad Hoc Tribunals • ICT for former Yugoslavia • 1993 Un Sec Council established first international war crimes tribunal since WWII • ICT had authority to prosecute for grave breaches and serious violations of international humanitarian law • Statute of ICTY established command resp • Zejnil Delalic et al. • ICTR (Rwanda) • 1994 internal armed conflict • Prosecute genocide and other serious violoations of international humanitarian law

8. Prosecution of War Crimes • ICC - established by Rome statute • Permanent international tribunal with jurisdiction over individuals accused of war crimes • Grave Breaches, Serious Viol (listed) • Attacks on UN personnel engaged in peacekeeping • Grave Breaches – Crime (1949 Conv) • Serious Felonies • International Armed Conflict required • Victim must be a protected person • Simple Breaches • Some internal armed conflict • Viol of Common Art 3 (minimum standards)

9. But What About This Thing Called a “Military Tribunal”??? • State Responsibility • Enact laws to ensure punishment for grave breaches • Search out and Prosecute those who commit grave breaches • Suppress “simple breaches” • Provide accused persons safeguards of “proper trial and defense” • Pay compensation for grave breaches committed by US military members

10. US Laws • 1996 NDAA – defined war criminal to include those indicted by ICTY and ICTR • Amended extradition laws to allow US to extradite to the ICTY and ICTR • 1996 War Crimes Leg – created federal jurisdiction over those who commit a grave breach on US national or member or armed services and over US nationals and mil members who commit grave breaches • Also allows prosecution for violations of CA3 and limited other international laws. • Congress provided general courts-martial and military commission w/requisite authority to try and punish war criminals effectively (UCMJ Art 18 and 21)

11. US Prosecution • UCMJ Art 18: “GCMs also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war” • UCMJ Art 21: “These provisions do not deprive military commissions … or other military tribunals of concurrent jurisdiction …” • Result – Concurrent Jurisdiction • UCMJ Art 36: President may prescribe rules for both

12. Military TribunalsHistorical Perspective • Military Commissions historically used to prosecute enemy combatants who violate laws of war • Last time US used MC process was WWII • US v. Quirin (pre-UCMJ … Articles of War) • 8 Nazi saboteurs captured in NY & FL • 1942 Proclamation by President: All persons who … charged with sabotage, espionage, hostile acts or LOAC violations shall be subject to the law of war and the jurisdiction of military tribunals • Ct unanimously aff’d US authority to detain captured enemy combatants until end of hostilities • Also upheld President’s ability to try detainees by military commission

13. Quirin – Cont’d • President set out jurisd and procedures in 1942 proclamation • Followed by commission and not in conflict w/Articles of War • Accuseds in lawful custody • Articles of War recognized “military commission” as appropriate tribunal for trial of offenses against LOW not ordinarily tried by CM • By LOW, lawful combatants are subject to capture and detention as POWs • Unlawful combatants are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful • Subjects properly categorized and tried as unlawful combatants • Constitution does not require offenses against LOW be tried in civil courts

14. Right Person? Right Conflict? NO YES POW Held until Cessation Of Hostilities Repatriated Enemy Combatant Unlawful Belligerent Combatant Immunity Detained LOAC Violation? LOAC Viol? War Crime? Released to own Country for Prosecution US Military Commission Int’l Criminal Tribunal US Civilian Court

15. Military Tribunals Since 2001 • Nov 2001 – President authorized DoD to create military commissions to try terrorists who were not US citizens • DoD GC issued 9 military commission instructions • Fed Ct v. Military Commission • Mil Commission balances fair trial v. nat’l security/intelligence information • Mil Commission takes into account unique battlefield environment • No particular procedures/details • Presumption of Innocence, BRD, Panel 3-7 officers, Defense able to cross-examine, call witnesses and present evidence, no adverse inference from silence, nothing said to DC can be used against accused, open proceedings (except nat’l security info), review of record by 3-member review panel

16. Tribunals since 9/11 • Rumsfeld v. Padilla – June 2004 • Arrested during material witness warrant in conjunction with 9/11 attacks • Pres issued and order designating Padilla as enemy combatant and that he be detained in military custody • HC to challenge detention • Wrong party … no jurisiction • Rasul v. Bush – June 2004 • Prisoners (2 Australians/12 Kuwaitis) captured in Agfhanistan and held at GTMO • Challenged detention: never combatants against US or engaged in terrorist acts, never been charged with wrongdoing or provided access to counsel or courts • DCt had jurisdiction to hear case • HC authorized by persons claiming to be held in custody in violation of the law of the US. This extends to aliens held in a territory over which US exercises jurisdiction but not “ultimate sovreignty”

17. Tribunals since 9/11 • Hamden v. Rumsfeld – June 2006 • Hamden captured in Afghanistan (Yemeni National) and held at GTMO • President deemed Hamdan eligible for trial by military commissions for unspecified crimes • One year later charged with conspiracy to commit offenses triable by MC • Asserted: • No authority to try him because conspiracy is not a violation of the law of war • Procedures adopted to try him violate basic tenets of military and international law

18. Gov’t argued: • Detainee Treatment Act withdrew jurisdiction from Sup Ct – Denied • Ct should abstain from review – Denied (Gov has no countervailing interest that would prevent courts from exercising their congressionally conferred jurisd) • UCMJ/DTA at MOST acknowledge a general presidential authority to convene mil tribunals in circumstance where justified under Constitution and laws (incl LOW) • Military Commission lacks power to proceed because its structure and procedures violate both the UCMJ and 1949 GC

19. Article 36 not complied with • Procedural rules for CM and MC must be uniform insofar as practicable • President’s “inpracticability determination” insufficient to justify variance • Violates GC • “… including prohibition on the passing of sentences without previous judgment by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples” • MC can only be regularly constituted only is fome practical need explains deviations from court-martial practice • Acc must, absent disruptive conduct or consent, be present for trial and privy to the evidence against him • RESULT??? Military Commission Act of 2006 and Military Commissions Manual

20. Military Tribunals Since Hamdan • 2006 Military Commissions Act – Response to Hamden • Established procedures governing the use of Military Commissions to try alien, unlawful combatants • Engaged in hostilities against the US • For violations of LOW and other offenses triable by military comission • Established jurisdiction over any alien unlawful combatant define as: • Engaged in hostilities or purposefully and materially support hostilities against the US or its co-belligerents AND NOT a lawful enemy combatant; OR • A person determined to be an unlawful enemy combatant by a CSRT or other competent tribunal • Prosecution drafts charges • Convening Authority refers to trial (Referral is act directing MC be convened and detailing members)

21. CA appoints the Chief Judge who then details a military judge to each case. • MJ rules on questions of law, admissibility of evidence and all interlocutory questions • Evidence – probative value • Evidence may not be excluded on the grounds there was no search warrant – takes into account unique battlefield environment • Each MC has at least 5 members • 2/3 majority required; 12 in a death case, w/unanimous vote; ¾ for more than 10 year sentence • Any commissioned officer eligible to be member • Upon finding of guilt, MC may impose any appropriate sentence

22. All records must be reviewed by the Legal Advisor’s office • CA takes action only after consideration of all matters submitted by accused and recommendation of legal advisor • CA can mitigate sentence and dismiss charges or order rehearing • Not appealable by prosecution • Each case including a finding of guilty is referred to the Court of Military Commission Review established by SecDef. • At least 3 appellate judges – may be military or civilian • US Ct of Appeals for DC has exclusive jurisdiction to determine validity of any final decision of MC case. • Supreme Court may review by writ • But remember the language in Hamden …

23. Military Commissions Manual • January 2007 • Very similar to MCM • Intended to ensure alien unlawful enemy combatants who are suspected of war crimes are prosecuted before “regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people” • Part II, Rule 103 defines “unlawful enemy combatant” • Rule 201 specifically states the military commissions convened under the MCA shall not have jurisdiction over lawful enemy combatants • Determination will be made by CSRT or other competent tribunal dispositive • Rule 203 – may try any offense under the MCA or law of war • Section IV Spells out specific offense triable by military commission and sets maximum punishments • Section II spells out procedure and Section III spells out evidentiary rules • Protections for the accused

24. Military Commissions Since 2001 • Open “disclosure” • All documents available on W3 • Matthew Hicks, Australia • First trial by MC since MCA of 2006 • March 1, 2007 charges referred • Mar 30, 2007 convicted of material support to terrorism • Pled guilty, non-capital offense w/PTA • Hamdan, Round II • Charges referred 10 May 2007 • Conspiracy; providing material support to terrorism • Currently in motions

25. US v. Khadr (Canadian Citizen) • First case out of Ct of Mil Comm Review • Charged w/killing US solder in Afghanistan • MJ dismissed case in June – lawful combatant – Gov appealed • Should have had POW status and other rights under int’l law • Gov – Al Qaeda combatants are, by definition unlawful (remember status discussion?) • What is “unlawful” – MCA requires “unlawful combatants” but GTMO just calling them enemy combatants • CSRT determined Khadr to be “enemy combatant” and an individual who was a member of, or affiliated with al Qaeda” (MCA defines al Qaeda members into unlawful enemy combatant) • Two issues: • Did MJ err in decision that CSRT determination insufficient to establish jurisdiction? • No – aff’d; finding Khadr as an “enemy combatant” was insufficient to establish MC’s jurisdiction • Could MJ have reassessed CSRT decision? • MJ should have allowed Gov to present evidence in support of jurisdiction • CSRT determination not a pre-requisite for referral and MC had power to independently consider jurisdiction • MCA says: “a person who … OR … a person determined by CSRT” • Alternative approaches • Remanded to MJ for full hearing and determination on jurisdiction • Fallout??? Mohammed trial – mastermind of 9/11 and fellow co-conspirators

26. Military Commissions Today • Current issues • Resignation of Chief Prosecutor • Political interference from CA – a political appointee • Investigating and drafting charges – objective? • Need for open hearings – go through classification review process; new CA pressed with closed hearings • Placed chief prosecutor in chain of command under DoD GC Haynes – different perspective and different agendas – “the decision to give him command over the fhief prosecutor’s office cast a shadow over the integrity of the military commissions” • New cases • Mohammed – Preferred Oct 07 • 9/11 co-conspirators – Preferred Feb 08 • Conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of LOW, destruction of property, hijacking, terrorism, providing material support to terrorism • Status of Detainee at GTMO • Lawful or Unlawful Enemy Combatants?

27. QUESTIONS???