JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says regularly constituted military courts-martial could be a plausible third option for federal prosecution of members of al Qaeda and the Taliban outside of federal district courts or US military commissions…..

Where should we be trying members of al Qaeda and the Taliban? Although there has been a great deal of attention to the Obama Administration’s alleged choice between a federal district court and a suspect military commission, there has been no noticeable public discussion of the third forum for federal prosecution of members of al Qaeda and the Taliban and its advantages over military commissions — a military court-martial.

Clearly, trial in a federal district court can be useful for prosecution under various extraterritorial federal laws, such as those that cover murder of U.S. nationals abroad, attempts or conspiracy to kill a U.S. national, and serious bodily injury to a U.S. national under the Antiterrorism Act; anti-hijacking legislation; aircraft sabotage legislation; and any of the federal laws that formed the basis for the indictment in absentia of bin Laden in 2000 in the Southern District of New York. Federal district courts can also be used to prosecute offenses against the laws of war under two sets of federal legislation (1) 10 U.S.C. § 818 (which the Supreme Court has recognized with respect to similar language in its predecessor has incorporated all of the laws of war by reference as offenses against the laws of the United States) coupled with 18 U.S.C. § 3231 (which assures federal district court jurisdiction over all offenses against the laws of the United States), and (2) the War Crimes Act (which merely incorporates some law of war offenses).

Clearly also, prosecution in federal district courts would allow the United States to comply with a number of U.S. obligations under customary and treaty-based international law that the President has a constitutionally-based duty to faithfully execute and that the Supreme Court has already recognized in Hamdan v. Rumsfeld are required under international law, including the need for use of at least minimal due process guarantees under human rights law and applicable laws of war in order to have a fair trial. Fair trials would also serve short and long-term U.S. foreign policy interests and serve fundamental American values that must not be thrown aside.

Federal district court prosecutions would also allow U.S. nationals to avoid criminal and civil liability here and abroad for violations of international law that can pertain with respect to use of present military commissions. It is important to recall in this regard that Article 23(h) in the annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War recognizes the customary and treaty-based war crime of declaring “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” Why would the Obama Administration want to set up possible war crime responsibility for military commission judges, military and civilian judges who might review military commission proceedings, and certain members of Congress who had the relevant mens rea when creating the Military Commissions Act? Since international law is a two-way street and can shift with changing patterns of practice and opinio juris, why would the Administration potentially place our soldiers and civilians in harm’s way by approving use of military commissions that simply cannot meet present human rights and law of war standards and might simply be copied in Syria, Iran, or some other country that might obtain jurisdiction over a U.S. national in the future?

As documented in an Amicus Brief of the Human Rights Committee of the American Branch of the International Law Association before the United States Court of Military Commission Review and a prior JURIST ope-ed a military commission operating under the Military Commissions Act is actually not a lawful alternative. The military commissions are not “regularly constituted” or “previously established in accordance with pre-existing laws” and are therefore without jurisdiction under relevant international laws. The military commissions at GTMO are also not constituted within a theatre of war or war-related occupied territory and are therefore without lawful jurisdiction.

The majority opinion of Justice Stevens in Hamdan v. Rumsfeld recognized that common Article 3 of the Geneva Conventions “is applicable … and … requires that … [a detainee] be tried by a ‘regularly constituted court affording all the judicial guarantees'” recognized under customary international law. As Justice Stevens noted, Article 14 of the International Covenant on Civil and Political Rights, among other instruments, sets forth “basic protections” regarding due process. Justice Stevens also noted that “regularly constituted” courts include “‘ordinary military courts’ and ‘definitely exclud[e] all special tribunals'” and that regularly constituted means “‘established and organized in accordance with the laws and procedures already in force.'” Justice Kennedy confirmed that common Article 3 applies as “binding law,” that a “regularly constituted” court “relies upon … standards deliberated upon and chosen in advance,” and that a violation of common Article 3 is a war crime. Justice Kennedy added: “[t]he regular military courts in our system are the courts-martial” and they “provide the relevant benchmark.”

As noted in the Amicus Brief and in my book Beyond the Law, a military commission created post hoc and as a special military tribunal under the Military Commissions Act (which was not “already in force” or “chosen in advance”) simply could not meet the “regularly constituted” test and would necessarily violate common Article 3. The Amicus Brief and my book document why under venerable Supreme Court doctrine Geneva treaty-based law, other treaty law, and customary international law have primacy as law of the United States over subsequent federal legislation such as the MCA. Even if this was not the result, the type of violations of international law recognized already in Hamdan would still exist, making the United States a law violator, and would subject several of our nationals to possible criminal and civil liability abroad. Additionally, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a “denial of justice” for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires “equality before the law” and “equal protection of the law” as well as the prohibition of national origin discrimination.

The third forum that can provide a lawful alternative in time of war over some members of al Qaeda, certain other civilians, and prisoners of war is a court-martial. Prior to 2006, 10 U.S.C. § 802(a)(10) (which is within the Uniform Code of Military Justice (UCMJ)) allowed courts-martial jurisdiction “in time of war” over “persons serving with or accompanying an armed force in the field.” In 2006, the subsection was changed to limit “time of war” to a circumstance of “declared war or a contingency operation.” Perhaps interpr
etation of the statutory phrase “declared war” could be stretched to include a congressionally-authorized war such as those in Afghanistan and Iraq, and the phrase “contingency operation” might be interpreted to reach military operations in those countries. This would be relevant to the reach of § 802(a)(10) after 2006, but courts-martial would be regularly constituted under previous federal law vis-a-vis members of al Qaeda or the Taliban detained after October 7, 2001 (when the U.S. was at war with the Taliban in Afghanistan) that could reach even farther prior to 2006 — to “time of war” as such. Another choice to be made would involve interpretation of the phrase “an armed force.” If it can include a Taliban armed force, some members of al Qaeda could have been serving with or accompanying such an armed force. Courts-martial also have jurisdiction over prisoners of war under § 802(a)(9) and (13) — which should include members of the regular armed forces of the Taliban, since membership is the only criterion for pow status under Article 4(A)(1) or (3) of the Geneva Prisoner of War Convention.

There are a panoply of offenses that can be tried in courts-martial under the UCMJ, including violations of the laws of war under § 818 which provides a basis for jurisdiction independent of § 802 with respect to prosecution of “any person who by the law of war is subject to trial by a military tribunal”. With respect to non-prisoners of war who are U.S. or foreign nationals, perhaps Ex parte Milligan (U.S. 1866) and Reid v. Covert (U.S. 1957) can be distinguished if merely violations of the laws of war by “enemies” are prosecuted. See Reid, 354 U.S. 1, 34 n.61 (1957); see also Ex parte Mudd (milt. comm. 1868) and United States v. Tiede (U.S. Ct. for Berlin 1979, distinguishing several Supreme Court cases). Courts-martial would be regularly constituted by previous law set forth in the UCMJ, would not present the procedural improprieties that can arise in a military commission under the MCA, and are the type of tribunal that can allow prosecution of U.S. as well as foreign nationals and avoid violations of international legal requirements of equality of treatment and equal protection of the laws.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.
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