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The Case Against Military Commissions

Published online by Cambridge University Press:  27 February 2017

Harold Hongju Koh
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In January 2002, Zacarias Moussaoui, a French national of Moroccan descent, pleaded not guilty in Virginia federal court to six counts of conspiring to commit acts of international terrorism in connection with the September 11 attacks on the Pentagon and the World Trade Center. In other times, it would have seemed unremarkable for someone charged with conspiring to murder American citizens and destroy American property on American soil to be tried in a U.S. civilian court. More than two centuries ago, Article I, Section 8, Clause 10 of the United States Constitution granted Congress the power to "define and punish Piracies, Felonies committed on the High Seas, and Offenses against the Law of Nations," a power that Congress immediately exercised by criminalizing piracy, the eighteenth-century version of modern terrorism. Since then, Congress has criminalized numerous other international offenses. In recent decades, United States courts have decided criminal cases convicting international hijackers, terrorists, and drug smugglers, as well as a string of well-publicized civil lawsuits adjudicating gross human rights violations. Most pertinent, federal prosecutors have successfully tried and convicted in U.S. courts numerous members of Al Qaeda, the very terrorist group charged with planning the September 11 attacks, for earlier attacks on the World Trade Center and the U.S. embassies in Tanzania and Kenya.

Type
Agora: Military Commissions
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 337 - 344
Copyright
Copyright © American Society of International Law 2002

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References

1 A, Brooke. Masters, , Invoking Allah, Terror Suspect Enters No Plea: U.S. Judge in Alexandria Schedules October Trial, Wash. Post Jan. 3, 2002 Google Scholar, at A1.

2 Act of Apr. 30, 1790, ch. 9, §8, 1 Stat. 112, 113-14.

3 See, e.g., 18 U.S.C. §1201 (aircraft sabotage and kidnapping act), §1203 (criminalizing hostage taking), §831 (theft of nuclear materials) (2000).

4 See, e.g., United States v. McVeigh, 9 Fed. Appx.980 (10th Cir. 2001), 2001 U.S. App. LEXIS 11804 (unpublished); United States v. Noriega, 683 F.Supp. 1373 (S.D. Fla. 1988) (trying Panamanian leader who was apprehended by U.S. Special Forces after extended military operations).

5 See, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995), cert, denied, 518 U.S. 1005 (1996); In re Estate of Marcos, 25 F.3d 1467, 1472-76 (9th Cir. 1994), cert, denied, 513 U.S. 1126 (1995); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). See generally Harold Koh, Hongju, Transnational Public Law Litigation, 100 Yale L J. 2347 (1991)CrossRefGoogle Scholar (reviewing litigation trend).

6 See Jones, Charisse, Four Guilty in U.S. Embassy Attacks: Two Bombings in Africa Killed 224, USA Today, May 30, 2001,Google Scholarat 1A; T, Martha. Moore, , Bomb Verdicts Are 2nd Victory for Government, USA Today, Nov. 13, 1997 Google Scholar, at 3A. Under the Classified Information Procedures Act, U.S. prosecutors have regularly used special pretrial procedures in these cases to protect classified information. 18 U.S.C. app. 696, §1 (2000). See generally P, Richard. Salgado, , Government Secrets, Fair Trials, and the Classified Information Procedures Act, 98 Yale L.J. 427 (1988)Google Scholar (describing practice under the Act); Keller, Bill, Trials and Tribulations, N.Y. Times, Dec. 15, 2001 Google Scholar, at A31 (“Over the past eight years the U.S. attorney [for the Southern District of New York] . . . has successfully prosecuted 26jihad conspirators, in six major trials and some minor ones.”).

7 Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1(e) (Nov. 13, 2001), 66 Fed. Reg. 57,833 (Nov. 16, 2001) [hereinafter Military Order] (emphasis added). The Military Order provides: (1) that “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts”; (2) that trials need not be open; (3) that conviction and sentencing shall be “only upon the concurrence of two thirds of the members of the commission”; and (4) that defendants “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly,” in any U.S., foreign, or international court. Id. §§1 (f), 4(c) (4), 4(c)(6)-(7), 7(b)(2).

8 See Lardner, George Jr., On Left and Right, Concern Over Anti-Terrorism Moves: Administration Actions Threaten Civil Liberties, Critics Say, Wash. Post, Nov. 16, 2001 Google Scholar, at A40.

9 The president’s legal counsel subsequently asserted that the order “covers only foreign enemy war criminals” who are chargeable “with offenses against the international laws of war”; that the order “does not require that any trial, or even portions of a trial, be conducted in secret”; that”[e]veryone tried before a military commission will know the charges against him, be represented by qualified counsel and be allowed to present a defense”; and that “anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court.” R, Alberto. Gonzales, , Martial Justice, Full and Fair, N.Y. Times, Nov. 30, 2001 Google Scholar, at A27. While the regulations issued by the Department of Defense after this essay was written (U.S. Dep’t of Defense, Military Commissions Order No. 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (Mar. 21, 2002), at <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>) respond to the heated criticism of the Military Order by providing more courtlike guarantees, they pointedly omit any opportunity for judicial review before a civilian court. The irony, as I suggest in the text, is that proceedings before these commissions will now be likely to suffer from many of the inefficiencies associated with judicial proceedings, but without garnering in return the global respect that genuine, credible judicial proceedings are accorded.

10 Letter from Law Professors and Lawyers to the Honorable Patrick J. Leahy (Dec. 5, 2001), at <http://www.yale.edu/lawweb/liman/letterleahy.pdf> [hereinafter Law Professors’ Letter]. Those law professors (including this author) called “the untested institutions contemplated by the Order . . . legally deficient, unnecessary, and unwise.” In particular, they argued that the order violates separation of powers, “does not comport with either constitutional or international standards of due process,” and “allows the Executive to violate the United States’ binding treaty obligations.” For devastating critiques of the Military Order under American constitutional law, see, for example, K, Neal. Katyal, & H, Laurence. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L J. 1259 (2002)Google Scholar (arguing that order is unconstitutional on its face); P, George. Fletcher, , War and the Constitution: Bush’s Military Tribunals Haven’t Got a Legal Leg to Stand On, Am. Prospect, Jan. 1-14, 2002 Google Scholar, at 26.

11 U.S. Const, amends. V, VI, VIII; International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 14, 999 UNTS 171 [hereinafter ICCPR]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Arts. 4-5, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention]; see also Fitzpatrick, Joan, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 AJIL 345 (2002)Google Scholar; A, Daryl. Mundis, , The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, 96 AJIL 320 (2002)Google Scholar (both finding inconsistencies between administration’s position and international standards).

12 See Ex parte Milligan, 71 U.S. (4 Wall.) 2,120-21 (1866) (stating that the U.S. Constitution is a “law for rulers and people, equally in war and in peace,... at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”). In any event, the Bush administration has taken none of the requisite steps to declare a state of emergency warranting derogation from its ICCPR obligations. See also The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency, UN Doc. E/CN.4/Sub.2/1997/19, para. III (1997) (“ [M]easures adopted by a Government to combat terrorism should not affect the exercise of the fundamental rights set forth in the Covenant.... Regarding article 14 [fair trial requirements], the [Human Rights] Committee said that no derogation whatsoever from any of its provisions was possible.”).

13 Law Professors’ Letter, supra note 10 (stating that the ICCPR “obligates States Parties to protect the due process rights of all persons subject to any criminal proceeding” and that the Third Geneva Convention “requires that every prisoner of war have a meaningful right to appeal a sentence or a conviction. Under Article VI of the Constitution, these obligations are the ‘supreme Law of the Land’ and cannot be superseded by a unilateral presidential order.”).

14 Mittigan, 71 U.S. at 47 (quoting David Dudley Field’s Supreme Court argument). Military commissioners are even less independent than court-martial judges, who operate under the statutory protections of the Uniform Code of Military Justice. Yet as Justice Black noted in Reid v. Covert, 354 U.S. 1, 36 (1957) (plurality opinion), even “[c]onceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.”

15 Even when sitting American judges have served on military commissions, their independence has been compromised because they act as appointees of the executive branch capable of being fired or ordered to decide particular cases in particular ways. See M, Robert. Cover, , M, Owen. Fiss, , & Resnik, Judith, Procedure 1343–45 (1988)Google Scholar (describing “United States Court for Berlin,” an “Article II court” established in 1979 under authority of the U.S. high commissioner for Germany and presided over by Herbert Stern, a sitting Article III judge: “After that suit was filed in Berlin, the United States Ambassador . . . instructed the judge on how he was to decide the case; the ambassador ordered Judge Stern either to dismiss the case or to resign his commission.”).

16 Reid, 354 U.S. at 39.

17 317 U.S. 1 (1942). Quirin was itself an embarrassing “tale of. . . a prosecution designed to obtain the death penalty;... a rush to judgment, [and] an agonizing effort to justify a. fait accompli.” J, David. Danelski, , The Saboteurs’ Case, 1 J. S.CT. Hist. 61, 61 (1996)Google Scholar. Justice Douglas later recalled the procedure in Quirin, which announced a result with an opinion following later, as “extremely undesirable”; Justice Frankfurter, as “not a happy precedent.” Justice Black’s law clerk argued that “if the judges are to run a court of law and not a butcher shop, the reasons for killing a man should be expressed before he is dead; otherwise the proceedings are purely military and not for courts at all.” Id. at 80; accord E, Robert. Cushman, , Ex parte Quirin et al.—The Nazi Saboteur Case, 28 Cornell L.Q. 54 (1942)Google Scholar (recounting rush to judgment).

18 Fifteen years after Quirin, Justice Black reiterated that” [e]very extension of military jurisdiction,” including, presumably, the assertion of military jurisdiction over alien war crimes, “is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.” Reid, 354 U.S. at 21.

19 Far from endorsing such abroad divestiture of civilian jurisdiction over war crimes, Congress in 1996 enacted the War Crimes Act, which plainly envisioned that persons inside or outside the United States who commit certain statutory “war crimes” should be punished before the extant, functioning U.S. courts. War Crimes Act, 18 U.S.C. §2441 (2000); accord Reid, 354 U.S. at 41 (Frankfurter, J...concurring in the result) (“The normal method of trial of federal offenses under the Constitution is in a civilian tribunal. Trial of offenses byway of court-martial, with all the characteristics of its procedure so different from the forms and safeguards of procedure in the conventional courts, is an exercise of exceptional jurisdiction . . . “ ) .

20 Quirin carefully specified that” [i]t is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.” 317 U.S. at 29 (emphasis added). The Act of Congress passed immediately after September 11 does not authorize the adjudication by military commissions of past acts by apprehended terrorists. It only authorizes the president to use “force” against persons involved in the September 11 attacks so as to prevent future harm to the United States. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

21 Accord Glaberson, William, Critics’ Attack on Tribunals Turns to Law Among Nations, N.Y. Times, Dec. 26, 2001,Google Scholar at B1 (citing international lawyers who argue that Military Order conflicts with the Geneva Conventions’ guarantees of procedural rights to prisoners of war). Significantly, the first two reported American casualties in Afghanistan were a nonuniformed CIA agent killed at a prison riot and a Special Forces officer ambushed while investigating civilian deaths. Diamond, John & Sly, Liz, Enemy Ambush Kills U. S. Soldier; Surrender Talks Continue near Omar’s Hideout, Chicago Trib., Jan. 5, 2002,Google Scholar at 1, available in LEXIS, News Library, Majpap File. Under the broad definition now asserted by the Bush administration, both deceased Americans could have been labeled “unlawful combatants” potentially triable before military tribunals. This concern makes even more troubling the White House’s recent, blanket determination that although the Geneva Conventions apply to Taliban detainees (but not A1 Qaeda), anyone who fought for the Taliban violated the laws of war and thus cannot claim prisoner-of-war status. White House Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), at <http://www.whitehouse.gov/news/releases/2002/02>. A correct application of the Geneva Conventions would have required that all detainees in U.S. custody be presumed to be prisoners of war until each had his status individually determined by the “competent tribunal” required by Article 5 of the Third Geneva Convention, supra note 11. Thus, the president’s announced decision to apply the Geneva Conventions to Taliban detainees should have required him to defer to a competent tribunal’s individualized determinations as to whether particular detainees are entitled to prisoner-of-war status, not allowed him to make his own blanket determination that all detainees are per se unlawful combatants.

22 When Peru, for example, branded Lori Berenson, an American citizen, a “terrorist,” the United States properly protested that her “trial” was not held in open civilian court with full rights of legal defense, in accordance with international judicial norms. See U.S. Dep’t of State, Peru, in 1999 Country Reports on Human Rights Practices, available at <http://www.state.gov/www/global/human_rights/1999_hrp_report/peru.html>.

23 Attorney General John Ashcroft’s own public defense of the Military Order before Congress was stunning in its dismissiveness about the capacity of United States judges and federal prosecutors (whose nominations he oversees) to try terrorist suspects fairly and expeditiously under existing judicial procedures. See Lane, supra note 10 (quoting testimony of Attorney General John Ashcroft, Senate Committee on the Judiciary, Dec. 6, 2001 (“Are we supposed to read [terror suspects] their Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of ‘Osama TV,’ provide a worldwide platform for propaganda?”)).

24 Cf. Ex parte Millgan, 71 U.S. (4 Wall.) 2, 119 (1866) (“By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.”). Under the so-called Charming Betsy principle, U.S. courts have regularly restrained proposed executive action within the bounds of international legal obligations. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). See generally G, Ralph. Steinhardt, , The Role of International Law as a Canon of Domestic Statutory Construction, 43 Vand. L. Rev. 1103 (1990)Google Scholar. To the extent that both the Third Geneva Convention and the ICCPR represent customary international law, fidelity to binding international obligations should require that the openended language of the Military Order be construed to require the procedural guarantees required by those instruments.

25 Q, Katharine. Seelye, , Troops Arrive at Base in Cuba to Build Jails, N.Y. Times, Jan. 7, 2002 Google Scholar, at A8 (Defense Secretary “Rumsfeld said he had not ruled out holding such tribunals at Guantanamo Bay”).

26 Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412, 1430 (11th Cir. 1995). The Eleventh Circuit’s broad ruling in the Cuban case would effectively treat alien detainees on Guantánamo as human beings without human rights. That ruling conflicted, however, with earlier decisions by the Second Circuit and a Brooklyn federal court involving Haitian refugees on Guantánamo. Haitian Ctrs. Council, Inc. v. McNary, 969 F. 2d 1326 (2d Cir. 1992), vacated as moot on other grounds, 113S.Ct.3028 (1993) (finding substantial likelihood that alien detainees on Guantánamo do have due process rights); Haitian Ctrs. Council v. McNary, 823 F.Supp. 1028, 1042 (E.D.N.Y. 1993), vacated by settlement (finding the same on the merits after a full bench trial). I should disclose that I served as counsel of record for both the Haitian and the Cuban refugees in the Guantánamo cases discussed here.

27 Cf. Harold Koh, Hongju, America’s Offshore Refugee Camps, 29 Richmond L. Rev. 139, 140–41 (1994)Google Scholar (“[T]he United States government has consistently asserted—and some courts have agreed—that these offshore locations constitute ‘rights-free zones,’ where [alien detainees] lack any legal rights cognizable under U.S. law and American [lawyers] lack First Amendment rights to communicate with them.”).

28 See UN Human Rights Expert Concerned over Military Order Signed by United States President, UN Newsletter (United Nations Information Centre New Delhi) (Nov. 24, 2001), at <http://www.unic.org.in> (urgent appeal of UN Special Rapporteur for the Independence of the Judiciary Param Cumaraswamy, calling Military Order regrettable for “the wrong signals it sent, not only in the United States, but around the world”).

29 See, e.g., Sam Dillon with G, Donald. McNeil, Jr., Spain Sets Hurdle for Extraditions, N.Y. Times, Nov. 24, 2001 Google Scholar, at A1 (suggesting that Spain will not extradite its suspects to U.S. military tribunal).

30 Some distinguished scholars have argued that such cases should be heard before an international tribunal, preferably one on which both American and Muslim judges sit. See, e.g., Anne-Marie, Slaughter, Al Qaeda Should Be Tried Before the World, N.Y. Times, Nov. 17, 2001 Google Scholar, at A23. But see J, Michael. Matheson, , U.S. Military Commissions: One of Several Options, 96 AJIL 354 (2002)Google Scholar (reviewing practical reasons why it remains unlikely that such a tribunal will be created).

31 For example, the Sierra Leonean tribunal has yet to hear any cases several years after the mass killings there, and a war crimes tribunal for Cambodia has yet to be set up more than twenty-five years after the operative events. See Mydans, Seth, Khmer Rouge Trials Won’t Be Fair, Critics Say, N.Y. Times, Feb. 10, 2002 Google Scholar, §1, at 12.

32 Sec Cose, Ellis, Silver Linings from a Summit, Newsweek, Sept. 17, 2001 Google Scholar, at 40.

33 The precise shape of the Afghan judicial system remains to be determined. I have no objection, for example, to an Afghan tribunal that would combine domestic and international elements, such as the Sierra Leonean tribunal created under UN auspices is designed to do. Whatever happens, United Nations transitional support and involvement will be critically necessary to stabilize the postconflict environment of Afghanistan, to promote the Bonn process of building a representative post-Taliban government, and to address justice, accountability, and truth telling about past human rights abuses by all parties to the Afghan conflict. This part of the judicial problem, however, differs little from that faced in Bosnia, East Timor, Kosovo, and Sierra Leone, where the United States similarly supported multilateral military operations that eventually secured a war-torn territory for a new, more democratic government. What makes this military struggle distinctive—and the element that engages U.S. judicial jurisdiction—is that this conflict was triggered by the massive September 11 attacks that killed thousands of American and other civilians on American soil.

34 While I agree with much of Professor Matheson’s sensible analysis, I disagree with his suggestion that persons who commit violations of the law of armed conflict on the battlefield of Afghanistan but have no provable connection to the September 11 attacks should be tried before U.S. military commissions. Instead, I share his alternative view: that” [e]ven for these persons, the alternative of trial . . . by any suitable Afghan tribunals should be considered.” Matheson, supra note 30, at 358.

35 My colleague Professor Wedgwood speculates that federal court trials of A1 Qaeda suspects will jeopardize classified information, limit available evidence, and endanger the security of judges and jurors. Wedgwood, Ruth, Al Qaeda, Terrorism, and Military Commissions, 96 AJIL 328 (2002)Google Scholar. Having dealt regularly with classified materials and federal trials during stints at both the State and Justice Departments, I find these claims vastly overstated. As one journalist has noted, during twenty-six successful federal prosecutions of jihad supporters over the past eight years,” [n] either the Justice Department nor prosecutors in New York could recall for me a single specific instance when national security was actually compromised during the trials in New York.” Keller, supra note 6. Nor is it clear why the potential excludability of some evidence should cripple prosecutors, given the huge volume of evidence that will be amassed in what has regularly been called the largest criminal investigation in history. And although extra security measures should doubtless be taken to ensure the safety of juries, judges, and prosecutors, such measures have been taken routinely in the past, not just in A1 Qaeda cases, but also in numerous cases involving organized crime, drug kingpins, and the like. In any event, it now seems clear that the Justice Department has not deemed any of these concerns sufficiently serious to militate against charging Moussaoui, Reid, and Walker in federal court. The Justice Department’s indictment practice so far thus casts serious doubt on Professor Wedgwood’s claim that “military commissions may be the most practicable course” for trials against A1 Qaeda members. Wedgwood, supra, at 330.