|
|
Issues and Commentary
On September 14, 2001, three
days after the devastating terrorist attacks on this country,
Congress authorized the use of "all necessary and appropriate
force" against the nations, organizations and people responsible.1 During the ensuing investigation to determine
responsibility, evidence indicated that Al Qaeda, an Islamic
terrorist organization, and specifically its leader, Osama bin
Laden, were behind the September 11 acts. On November 13, 2001,
President Bush signed an order creating military commissions,
which would conduct trials and punish foreign nationals designated
by the President as current or former members of Al Qaeda, and
who participated in acts "that have caused, threaten to
cause, or have as their aim to cause, injury or adverse effect
on the United States, its citizens, national security, foreign
policy, or economy." The entire order is available online
at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
While the use of military commissions is not common, during times
of war their use is hardly unusual. The proposed commissions
are modeled after tribunals created by President Roosevelt during
the Second World War. In a series of cases, the United States
Supreme Court upheld those tribunals against a variety of constitutional
challenges, and proponents of the present commissions take comfort
in those cases, the most significant of which we discuss below.
There are important differences between the legal landscape then
and now -- differences that will have to be addressed when the
present commissions are challenged. Moreover, while the legal
issues are complex, there is a more fundamental debate that asks
whether the commissions, regardless of their legality, make for
sound policy: whether, in the post-September 11 world, the United
States is well-served by utilizing military commissions.
This article offers differing perspectives on the proceedings,
as well as the necessity for the commissions. The authors are
in broad agreement that military commissions during a time of
war have long been part of this nation's history. However, this
article sets forth many of the legal and practical issues attendant
with the use of the commissions. Although at the time of writing
this article the specific rules governing the proceedings have
not been finalized, there are several fundamental principles,
such as the right to a public jury trial and to unanimous jury
verdicts, as well as evidentiary matters that will be discussed.
President Bush's Order
By its terms, the order requires "a full and fair trial."
By design, however, the trials will be very different from those
conducted in an American courtroom or a routine military court-martial.
Military personnel will serve simultaneously as judge and jury.
The 4th Amendment protections against unlawful search and seizure
will not apply, and prosecutors may present hearsay and other
evidence that would be inadmissible in an American court. Also,
the rules regarding the disclosure of evidence to a defendant
may be modified from those normally applied. Defendants can be
tried for conduct that took place before the tribunals were created
and all proceedings may be closed to the public.
The order directs the Secretary of Defense to draft specific
regulations governing the commissions. In late December, draft
regulations were leaked to the press. According to published
reports, the proposed regulations will accord defendants the
presumption of innocence and require prosecutors to prove their
case beyond a reasonable doubt. Civilian attorneys may represent
defendants, although it remains unclear whether these attorneys
would need to undergo security clearances before being approved
to represent a defendant. The regulations create limited appellate
review by a member of the Executive Branch of government, not
the Judiciary. Finally, though the President's order permits
sentencing based on two-thirds' vote of the commissioners in
attendance, the draft regulations require a unanimous verdict
before a defendant may be sentenced to death.2
These protections, if adopted and applied in good faith, represent
a substantial step toward insuring the fairness of any proceeding
before the commission.
The commissions created by President Bush are clearly modeled
after a similar commission created during the Second World War
by President Roosevelt, shortly after eight German saboteurs
put ashore in New York and Florida and were caught, precipitating
the most important case in any discussion about the military
tribunals.
Ex Parte Quirin
On June 13, 1942, four Nazi saboteurs landed at Amagansett
Beach in Long Island, New York. They arrived by German submarine
and wore their uniforms while coming ashore. Upon reaching land,
they buried their uniforms and a cache of explosives, and proceeded
to New York City, dressed as civilians. On June 17, 1942, four
more saboteurs landed in Ponte Vedra Beach, Florida. They too
buried their uniforms and explosives. They separated and traveled
to New York and Chicago. By some accounts, the saboteurs planned
to attack a number of well-known cities, including the hydroelectric
plants at Niagara Falls, the locks on the Ohio River, and the
New York City water supply.3 The Federal
Bureau of Investigation arrested all eight saboteurs before they
could act.4
On July 2, 1942, President Franklin Roosevelt created a military
commission to try the saboteurs for offenses against the laws
of war.5 President Roosevelt established
trial procedures,6 including the standards
for admitting evidence7 and appellate
review. He also authorized the commission to convict and sentence
defendants based on two-thirds vote of the attending commissioners.8
All eight defendants were convicted. On certiorari review
before the Supreme Court, the petitioners argued the President
had exceeded his statutory and constitutional authority in ordering
trial by military commission and asserted that they were entitled
to a trial in civil court, with the protections of the 5th and
6th Amendments. The Court disagreed and rejected their contentions.
Respecting presidential power, the Court noted that by passing
the Articles of War, Congress had specifically authorized the
use of military commissions for the trial and punishment of war
crimes. Because the President had invoked the powers granted
to him by Congress, the Court held he had not exceeded his constitutional
authority by creating the tribunals. As for whether the commissions
were appropriate, the Court found that by burying their uniforms
and traveling throughout the United States in civilian clothing,
the defendants had violated the laws of war and could be tried
by a military commission as saboteurs.
The Court similarly rejected petitioners' 5th and 6th Amendment
claims, concluding that these amendments "did not restrict
whatever authority was conferred by the Constitution to try offenses
against the law of war by military commission, and that petitioners,
charged with such an offense not required to be tried by jury
at common law, were lawfully placed on trial by the Commission
without a jury."9 Six defendants
were executed, while two who had cooperated with the FBI spent
a significant period in prison before being released.10
Because of the obvious similarities between the Roosevelt and
Bush tribunals, many observers believe the Supreme Court will
conclude, based on Quirin, that President Bush's tribunals
are lawful. Yet that conclusion assumes the Supreme Court will
have jurisdiction to hear a challenge to the tribunals. Such
an assumption remains in doubt, however, in light of another
important post-WWII decision.
Johnson v. Eisentrager
In 1945, after the German High Command had surrendered, but
before the surrender by the Japanese, the American Army arrested
21 German nationals in China who had been providing intelligence
information to the Japanese Army. Their continued support to
the Japanese violated the terms of Germany's unconditional surrender.
The Germans were tried and convicted for violations of the law
of war by a United States military commission sitting in China.
After their convictions, they were repatriated to Germany to
serve their sentences. The defendants petitioned the United States
District Court for the District of Washington for writs of habeas
corpus. The district court dismissed the petitions and the
D. C. Circuit reversed. The Supreme Court then granted certiorari.11
The Court was faced with determining whether nonresident enemy
aliens enjoyed the protections of the Constitution, including
access to United States courts. The Eisentrager petitioners
presented very specific facts. All were enemy aliens who had
never been in the United States. All had been captured outside
the United States and had been held in military custody as prisoners
of war. In addition, each was tried by a military commission
convened in China for offenses committed entirely outside the
United States. And finally, each was imprisoned outside the United
States.11 On these facts, the Court concluded
the defendants could not invoke federal judicial review and dismissed
their petitions.13
Eisentrager is clearly applicable in the present
debate over military commissions. Administration officials have
repeatedly suggested the military commissions may convene overseas.
Currently, a U.S. military base in Guantanamo Bay, Cuba, is being
readied to accommodate up to 2000 prisoners of war, some of whom
have arrived. The United States will undoubtedly rely on Eisentrager
as authority for its use of military commissions and to insulate
the commissions from constitutional challenge.
* * * * *
At a minimum, Quirin and Eisentrager establish
a number of propositions. First, during a time of declared war,
and to the extent authorized by Congress, the President may establish
military tribunals to prosecute enemy aliens for violating the
laws of war. Second, enemy aliens do not enjoy the protections
of the 5th and 6th Amendments, and certainly not the right to
trial by jury before such tribunals. Third, if the enemy alien
has no nexus to the territorial United States through either
his alleged crime, arrest, trial or punishment, United States
courts will probably not entertain a habeas challenge
to his conviction and sentence. |
William Michael is a former Assistant United States Attorney
now in private practice in Minneapolis. In addition, Mr. Michael
is a former Army Green Beret who has also served as a lawyer
in the Army Judge Advocate General Corps.
Joseph Margulies is a principal with the Minneapolis
firm of Margulies & Richman, specializing in civil rights,
criminal defense, and death penalty litigation. He has represented
men and women in capital cases across the country since 1989. |
