February 2002
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February 2002 |
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Classifieds Art © Franklin
McMahon / |
Appropriate Procedure by William Michael, Jr. |
Two Perspectives: "Military Tribunals are an Appropriate Procedure" "Military Tribunals are Likely Unconstitutinal, and Certainly Unwise" |
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draws on established precedent but gives rise to significant concerns. |
By William Michael Jr. |
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The tragic events of September
11, 2001 have forever changed our lives. We currently face threats
from terrorist organizations unlike any other within this country's
past experience. Modern terrorists act in ways that are neither
uniquely military nor criminal. Innocent civilians have become
targets of violent, deadly atrocities by terrorists who have
lived within our own communities. These terrorists received much
of their indoctrination and deadly training in countries thousands
of miles from our homes, in places that are inhospitable to the
United States and difficult to penetrate. Recognizing that terrorist
organizations present significantly unique concerns, the President
authorized the use of military commissions or tribunals to mete
out justice after those individuals responsible for the planning,
coordination, funding and approval of the attacks are eventually
located. According to testimony of Deputy Defense Secretary Wolfowitz, the President's decision to use a military commission in the war on terrorism was predicated on several important considerations. First, the participants in a military commission can be provided a higher level of security than in federal court. Second, the use of commissions will insure that "speedy, secure, fair and flexible proceedings" can be held in a variety of locations, minimizing the risks that might otherwise attend extended civilian trials. Third, military commissions can be conducted in a closed session, thereby insuring the protection of classified information and safeguarding intelligence sources and collection methods. Finally, by relaxing rules governing the admission of evidence, the order ensures that those responsible will be less likely to escape justice through legal technicalities that are inappropriate under the specific circumstances of these cases. Eisentrager demonstrates that the jurisdiction of military commissions to punish those violating the laws of war is well-established. In 1950, Congress acknowledged the appropriate use of military commissions in several statutes when enacting the Uniform Code of Military Justice. See 10 U.S.C. ¤821; see also 10 U.S.C. ¤818. Likewise, the Supreme Court has long recognized the "power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war." Duncan v. Kahanamoka, 327 U.S. 304, 313-14 (1946).. While some argue that the lack of a formal declaration of war bars the use of military tribunals, that poses no significant impediment. Although our Constitution requires Congress to declare war, the President has the authority to "wage war and to carry into effect all laws passed by Congress for the conduct of war ... and all laws defining and punishing offences against the law of nations, including which pertain to the conduct of war." Ex Parte Quirin, 317 U.S. 1, 26 (1942). For this reason, formal declarations of war have not precluded acts of war. Indeed, after World War II, there were multiple examples of armed hostilities for which war was never declared. Even so, the laws of war applied in each instance. Moreover, H.R. 3468, filed Dec. 12, 2001 and currently pending before Congress, will, if passed, give congressional approval to the use of military commissions. Due to the unique nature of terrorist activity, the nationality of members of organizations involved in this activity will be varied. This matters little to the technical applicability of tribunals, however, because when an individual becomes an "unlawful belligerent" under the laws of war, his nationality is irrelevant. In Quirin, one defendant was arguably a United States citizen. The Supreme Court addressed this issue by determining an enemy belligerent's citizenship does not relieve him from the consequences flowing from his violations of the laws of war. While nationality of the accused is irrelevant to the tribunal's authority, it will be a significant issue in obtaining custody of individuals seized by other countries. Many foreign countries have voiced displeasure with the proposition of military commissions. Indeed, many countries will not extradite individuals to the United States until they have received assurances that the death penalty will not be instituted against the affected individual. Each country that is eventually asked to extradite someone subject to military commissions will undoubtedly raise concerns with the process, as well as the potential penalties. Critics of military commissions may raise other challenges to their use under the Constitution, such as 8th Amendment concerns. However, in Eisentrager, the Supreme Court addressed other constitutional rights, including: 1st Amendment rights to freedom of speech, press and assembly; 2nd Amendment right to bear arms; 4th Amendment right against unreasonable search and seizure; and 5th and 6th Amendment rights to trial by jury. The Court concluded that these rights were inapplicable to enemy aliens tried by military commission, a result that would likely be followed when addressing any future 8th Amendment argument. The express language of the order signed by President Bush provides that any individual subject to trial by military commission shall be convicted and sentenced only upon the concurrence of two-thirds of the commission. This differs from the rule in United States district courts that require unanimity for a finding of guilt. However, there is no constitutional requirement that a finding of guilt be by unanimous agreement. In addition, our military justice system, which is governed under the Uniform Code of Military Justice and has jurisdiction over all United States armed forces, requires the concurrence of only two-thirds for both findings of guilt and in determining the sentence in most circumstances.10 U.S.C. ¤ 852. The exception to this general rule is that military capital cases require a unanimous finding. The use of these same standards for military commissions would assist in legitimizing the use of commissions. Military commissions must insure a full and fair trial. Congress has previously authorized the President to prescribe rules related to "[p]retrial, trial and post-trial proceedings, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals...." 10 U.S.C. ¤ 836. One of the justifications set forth by the Administration specifically addressed the methods-of-proof problems that would be minimized with the use of military commissions. Soldiers are not trained, nor do they have the time during battle, to maintain the chain of custody necessary for the admission of materials seized in a normal criminal trial. Normally, they do not gather documents for use in criminal trial, but instead for their intelligence value to assist in our military mission. However, as we are now facing an enemy that does not neatly fit into either the common criminal or the military adversary category, we face unique challenges in investigating, tracking, interdicting, combating and punishing them. The normal rules of search and seizure are not applicable. The exclusionary rule was adopted to protect a person's constitutional rights. See, e.g., Weeks v. United States, 232 U.S. 383 (1914). The purpose in adopting this rule was to deter illegal searches and seizures by government officials. United States v. Leon, 468 U.S. 897, 906 (1984). Under present circumstances, the exclusion of seized evidence at the trial of an accused terrorist would serve no purpose. Clearly, in time of war, the armed forces of a country may legitimately raid enemy locations and gather intelligence materials. Accordingly, excluding such material from a judicial proceeding would not deter any illegality. Under the rules adopted for military commissions, any evidence that has "probative value to a reasonable person" is admissible. Accordingly, while the evidentiary rules would be relaxed, any evidence must nonetheless be relevant to the proceeding and possess some minimum standard of evidentiary value. Also, while the federal courts have a mechanism in place to protect the release of classified information in trials, such procedures are likely insufficient to meet the concerns that will occur in many terrorist trials. See 18 U.S.C. Appendix 3, Classified Information Procedures Act, Pub.L. 96-456, Oct. 15, 1980, 94 Stat. 2025. Writing in the New York Times last November, columnist William Safire called such commissions "kangaroo courts." This characterization is imprudent. This view is currently unsupportable by any fact, as the commissions have not yet been utilized. Secondly, this characterization does a great disservice to the professionalism that military members exhibit when faced with the responsibility of military justice. Having served as both a military prosecutor and defense counsel, I believe that soldiers faced with this task are dedicated to the principles of justice. Having risked their lives protecting these freedoms, they are averse to infringing upon them. When called upon to serve in military commissions, they will act to insure that the accused is treated fairly, according to the governing procedural rules. Accordingly, while the use of military commissions will in all likelihood withstand each and every legal challenge, the larger question will be whether they withstand the challenges in the court of world opinion. To do so, they must not only be fair in practice, but also be perceived as fair to outside observers, a task that is far more daunting. |
 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. |