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MILITARY TRIBUNALS ARE CONSTITUTIONAL
Professor Jeffrey F. Addicott
St. Mary's University School of Law
JURIST Guest Columnist

甜The War on Terror] is civilization痴 fight. This is the fight of all who believe in progress and pluralism, tolerance and freedom.

- George W. Bush

In a speech delivered in 1984, Jeanne J. Kirkpatrick spoke of a coming 鍍errorist war [against the U.S.], [that] is part of a total war which sees the whole society as an enemy, and all members of a society as appropriate objects for violent actions. Her words came to pass on September 11, 2001, and the world community come to understand terrorism as 殿n act of war. Indeed, viewing terrorism as an act of war is a new manifestation of the changing nature of armed conflict. As such, it poses a new challenge for the historically fixed international rules relating to armed conflict. One of those issues pertains to the lawfulness of military tribunals to try al-Qa弾da and Taliban for war crimes.

Apart from the enormity of the al-Qa弾da attack, what made the events of September 11, 2001, so vastly different from all previous incidents of terror was that the U.S. and the North Atlantic Treaty Organization (NATO) both characterized the attack as an 殿rmed attack on the United States. The unprecedented armed attack determination was significant because it, in turn, immediately signaled that the U.S. intended to frame the terror attack as an event equivalent to an 殿ct of war under international law. Accordingly, a 砥se of force Joint Resolution was passed by the U.S. Congress; the President labeled the attack 殿n act of war; and, for the first time in its history, the North Atlantic Treaty Organization (NATO) invoked its collective self-defense clause, should a NATO member suffer an 殿rmed attack. Thus, the War on Terror is legally couched by the U.S. in terms of traditional 斗aw of war terminology, even though the actual attack was carried out by a non-State actor.

Understanding the need for international approval for prosecuting the War on Terror under the rule of law, the U.S. turned to the U.N. Security Council on the day after the attack in hopes of obtaining a strong use of force resolution. Instead, the U.S. received what might be deemed as a very strong statement of support by means of U.N. Security Council Resolution 1368. Nevertheless, because of the structured magnitude of the terrorist attack, Resolution 1368 specifically recognized America痴 妬nherent right of individual and collective self-defense in accordance with the Charter and specifically called on 殿ll States to work together urgently to bring to justice the perpetrators, organizers, and sponsors of these terrorist attacks [emphasis added]. Resolution 1368 further addressed the issue of responsibility for those States who supported or sponsored the terrorist attacks by 都tresses[ing] that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable. Taken as a whole, it can be argued that Resolution 1368 provided the U.S. and its allies with the legal authority necessary to respond to the terrorist attack through the use of military force in self-defense should a State[s] who supported, sponsored, or harbored the terrorists refuse to cooperate in bringing those responsible to justice.

Congress was also quick to address the attack. Although Congress elected not to 電eclare war under Article 1 of the Constitution, they did issue a joint resolution which left no doubt as to their desire to authorize the President to use military force if necessary. The joint resolution is cited as the 鄭uthorization for Use of Military Force and was passed by every member of Congress, save one.

In the wake of the military campaign in Afghanistan approximately 500 al-Qa弾da and Taliban fighters were captured and turned over to U.S. forces for disposition. As of late March 2002, approximately 300 had been transported to Guantanamo Bay, Cuba, for temporary internment. Two questions immediately arose in regard to 電ue process concerns for these individuals. First, were they entitled to treatment as prisoners of war under the Geneva Conventions? Second, if criminal trials were to be pursued by the U.S. should these individuals be tried in a U.S. federal district court or by means of a U.S. military tribunal?

An analysis of the first question regarding the status of al-Qa弾da and Taliban fighters under international law begins with the fact that the U.S. has long incorporated in its laws the international law of war, both customary and codified. After some internal debate, the Bush Administration correctly affirmed that the Geneva Conventions of 1949 did apply to the conflict in Afghanistan and, hence, the Taliban government. However, President Bush also determined that the captured al-Qa弾da and Taliban fighters were not eligible for prisoner of war status.

Since the al-Qa弾da fighters belong to a terrorist organization and are not recognized members of an armed force, they are unlawful belligerents under the law of war. This means that they are responsible for breaches of the law of war, but are not entitled to the status of prisoners of war. In the view of the Bush Administration, the al-Qa弾da engaged in acts of war both in the September 11, 2001, attack and in fighting alongside the Taliban forces in the internationally recognized armed conflict in Afghanistan.

As to the captured Taliban fighters, the U.S. determined that they were likewise not entitled to prisoner of war status under the Geneva Conventions because of their failure to comply with the Conventions criteria which require lawful combatants to wear distinctive military insignia, i.e., uniforms which would make them distinguishable from the civilian population at a distance. In finding that the Taliban 塗ave not effectively distinguished themselves from the civilian population, the U.S. also added that the Taliban fighters had further forfeited any special status because they had 殿dopted and provided support to the unlawful terrorist objectives of the al-Qa'eda. While the later finding would not necessarily indicate that the Taliban fighters would not be entitled to prisoner of war status, the former finding would. Still, the Bush Administration has repeatedly indicated that all detainees were to be treated in accordance with the humanitarian concerns set out in the Geneva Conventions even though they were not entitled to the protections of Geneva Conventions given to prisoners of war.

Second, if the al-Qa弾da and Taliban detainees are not prisoners of war and it is determined that there is sufficient evidence to believe that a particular individual has committed war crimes, what is the appropriate forum for prosecution? Ostensibly, the U.S. has four options which it may pursue - turn the accused over to an appropriate foreign jurisdiction, e.g., the new government in Afghanistan; turn the accused over to an International Tribunal; try the accused in a U.S. federal district court; or try the accused in a U.S. military tribunal. If one is only concerned with expediency, the first option is probably the most attractive and need not be discussed here. Likewise, the use of an International Tribunal is attractive but probably not workable due to concerns over such issues as the absence of a death penalty, possible security comprises of sources and techniques, and reduced levels of due process provided to the accused (e.g., no jury trial, only a simple majority of a panel of judges is required to convict, etc.).

It is well settled that U.S. federal district courts have jurisdiction to try individuals for terrorist related offenses under a variety of statutes and, in at least one case involving a foreign national who tried to commit an in-flight bombing of an American Airlines flight from Paris to Miami on December 22, 2001, that power is being exercised. However, instead of charging suspected al-Qa弾da war criminals with violations of the law of war, the federal courts would simply apply parallel statutes related to the malum en se crime or apply the appropriate 鍍errorist statute.

The final forum which is available to prosecute those individuals taken from Afghanistan who are suspected of committing war crimes is the military tribunal. On November 13, 2001, President Bush signed an executive (military) order which authorized the creation of military tribunals to try certain 渡on-citizens for engaging in terrorist acts against the U.S. or aiding or abetting in terrorist acts against the U.S. Because military tribunals have not been used since the end of World War II, the efficacy of using this forum to prosecute the al-Qa弾da and Taliban fighters for war crimes mandates analysis from both legal and historical perspectives.

Military tribunals are non-Article III courts. They derive their basic grant of authority from Articles I and II of the U.S. Constitution. Respectively, Congress has the power to 電efine and punish offenses against the Law of Nations, and the President is the 鼎ommander in Chief of the Army and Navy. Furthermore, Congress has specifically provided for the use of military commissions in Article 21 of the Uniform Code of Military Justice (UCMJ).

Historically, military commissions have been used in a variety of situations associated with urgent government needs related to war. In Madsen v. Kinsella (1952), the Supreme Court spoke at some length on the history of military tribunals, saying: 鉄ince our nation痴 earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities relating to war. In addition, the Courts have recognized the fact that military tribunals have been used without Congress specifically 電eclaring war. For example, military tribunals were used in the War with Mexico, even though Congress never formally 電eclared war.

A military tribunal consists of a panel of officers who are authorized to render a verdict and sentence. The historical concern in this instance is not whether military tribunals can be used to prosecute U.S. citizens who may or may not be belligerents, but whether tribunals are constitutionally able to prosecute non-citizen belligerents for offenses in violation of the law of war. Regarding the use of military tribunals to try U.S. citizens who are not belligerents, the Supreme Court rendered its opinion in Ex Parte M Milligan, where it held that as long as the civilian courts were operating, the use of military tribunals to try U.S. citizens who were not actual belligerents was unconstitutional. As to the use of military tribunals to prosecute non-citizen belligerents for offenses in violation of the law of war, the standard is set out in Ex Parte Quirin.

In Ex Parte Quirin (1942), the U.S. Supreme Court upheld the convictions of eight German saboteurs who had been captured in the U.S. and tried by a military tribunal ordered by President Franklin Roosevelt. The Court upheld the jurisdiction of the military tribunal, stating: 釘y the Articles of War, and especially Article 15, 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. The Court easily distinguished the case from Ex Parte Milligan (1866), holding that offenses against the law of war by non-citizen belligerents were constitutionally authorized to be tried by military commission. Besides the trials of the German saboteurs during World War II, subsequent military tribunals were used to prosecute approximately 2,600 members of the Axis for violations of the law of war, to include the murder of captured American soldiers at the Battle of the Bulge. The surviving high-ranking war criminals in the German military and government were tried by a special international tribunal in Nuremberg, Germany, at the so-called Nuremberg Trials and the Japanese leaders were tried at the International Military Tribunal for the Far East.

Although the Supreme Court has long held that the Constitution痴 Fifth and Sixth Amendment protections apply to non-U.S. citizens, such protections do not extend to individuals subject to trial in military tribunals for war crimes. Seemingly, the use of military tribunals has deeply seated historical and legal precedent as long as the non-citizen combatants are charged with violations of the law of war. In Application of Yamashita (1946), the Court traced the history of military tribunals and concluded: 釘y thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants Congress gave sanction, as we held in Ex Parte Quirin to any use of military commissions contemplated by the common law of war.

While issues remained to be worked out, challenging the constitutionality of military tribunals to try the al-Qa弾da terrorists for war crimes will prove a difficult task. In its January 2002 report on the lawfulness of using military tribunals, the American Bar Association (ABA) Task Force on Terrorism and Law found that the terror attacks of September 11, 2001, were arguably violations of the law of war that would justify the use of military tribunals to prosecute accused terrorists. Similarly, in February 2002, the ABA House of Delegates supported the President痴 use of military tribunals, but recommended that the implementing regulations afforded to 殿n accused in any military tribunal be raised to the level that would satisfy the requirements of fundamental fairness.

A more fertile area for discussion, which further demonstrates the constitutionality of the military tribunals, are the rules and procedures by which the tribunals will operate. After months of speculation, on March 21, 2002, the Secretary of Defense promulgated Military Commission Order No.1, entitled: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War on Terrorism. As expected, the rules and procedures generally contain many of the same provisions found in the Manual for Courts-Martial, which applies to U.S. military personnel when tried under the UCMJ. Specifically, the rules provide the following rights for the accused who is charged with a violation of the law of war:

  • a copy of the charges in English and a language he understands;
  • a presumption of innocence;
  • guilt must be proved by the government beyond a reasonable doubt;
  • access to evidence that the prosecution plans to present at trial;
  • access to evidence known to the prosecution tending to exculpate the accused;
  • right to remain silent;
  • right to testify subject to cross-examination;
  • right to obtain witnesses and documents for defense;
  • right to present evidence and cross-examine witnesses;
  • the appointment of interpreters to assist defense;
  • right to be present at every stage of trial (except when proceedings are closed by the Presiding Officer) unless disruptive;
  • access to sentencing evidence;
  • cannot be tried again by military commission once verdict is final;
  • right to submit a plea agreement;
  • two-thirds of the military officers on the panel must agree on findings of guilt;
  • unanimous decision of a seven member panel for death sentence;
  • right to a free military attorney or to hire a civilian attorney;
  • trial would be open to public (exceptions recognized for physical safety of participants, protection of classified information);
The military commission itself will be appointed by the Secretary of Defense or his designee and will contain a panel of three to seven members, all of whom are commissioned officers in the U.S. military. A presiding officer (PO) will be appointed to preside over the proceedings. The PO will be a judge advocate and will also serve as a voting member of the panel. The prosecutor will be a judge advocate although the Attorney General may provide special trial counsel to assist. The military commission is authorized to summon witnesses, administer oaths, require document production, and to designate special commissioners to take evidence.

Two areas of remaining tension associated with the use of military commissions concern the matters of post-trial review and evidence. The rules state that the record of trial will be transmitted to a Review Panel of three officers, one of whom has experience as a judge (the rules do provide that the Review Panel can contain civilians appointed by the President). The Review Panel will review the record of trial and within 30 days, forward the case to the Secretary of Defense with a recommendation or remand the case for further proceedings. If the Review Panel sends the record of trial to the Secretary of Defense, he will then conduct an independent review and either remand the case for further proceedings or forward to the President with his recommendation for a final decision (the rules do provide that the President can grant the Secretary of Defense the authority to approve the findings and sentence).

In regards to the issue of admissible evidence at trial, the rules allow that the military tribunal will operate in the traditional manner of all previous tribunals and consider hearsay evidence and information gathered without a search warrant. The standard for admissible evidence is that it would have probative value to a reasonable person. In addition, witnesses may testify by telephone or audiovisual means, evidence from previous trials may be considered, and the panel may take conclusive notice of facts not subject to dispute.

In short, it is virtually certain that the U.S. Supreme Court will affirm the lawfulness of military commissions in this context. Furthermore, the associated rules promulgated by the Secretary of Defense, also should pass constitutional muster.


Jeffrey F. Addicott is currently a Visiting Professor of Law at St. Mary's University School of Law. In 2000 he retired from the U.S. Army Judge Advocate General痴 Corps after twenty years of service, specializing in human rights law and national security law. Professor Addicott holds a Doctor of Juridical Science (SJD 1994) and a Master of Laws (LLM 1992) from the University of Virginia of School of Law, a Master of Laws (LLM 1987) from The Judge Advocate General痴 School, and a Juris Doctor (1979) from the University of Alabama School of Law. This excerpt is taken from a draft article accepted for publication by the law journal 典he Scholar, St. Mary痴 University School of Law.

March 26, 2002

© Jeffrey F. Addicott. All rights reserved.

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