***** Yale Law Journal April, 2002 111 Yale L.J. 1259 LENGTH: 20427 words ESSAY: Waging War, Deciding Guilt: Trying the Military Tribunals
Neal K. Katyal+ and Laurence H. Tribe++ + Visiting Professor, Yale Law School; Professor, Georgetown Law Center. ++ Ralph S. Tyler, Jr., Professor of Constitutional Law, Harvard Law School....
...The Constitution requires as well that, absent circumstances so exigent as demonstrably to rule out resort to Congress, that lawmaking body and not the Commander in Chief be the authorizing agent and the architect of the tribunals themselves. For the President to proceed on his own to alter the jurisdiction of the federal courts, redesigning the very architecture of justice, without any colorable claim that time is too short for Congress to act, is to succumb to an executive unilateralism all too familiar in recent days. As of this writing, to take a few examples, the President has evidently decided on his own that those detained at Guantanamo Bay, Cuba, are unlawful belligerents not entitled to prisoner-of-war status; he has suspended one of the oldest privileges in Anglo-American jurisprudence, the attorney-client privilege, for certain suspects; he has detained over a thousand people without ever publicly identifying all those who have been detained; and he has convinced American news networks not to carry full broadcasts of Osama bin Laden because the broadcasts may carry hidden messages. n2
...Without advance notice to either the congressional leadership or the public, President Bush issued a Military Order on November 13, 2001, which directed the Secretary of Defense to create military tribunals and to take into custody at once anyone the President names as subject to the [*1261] Order. n3 The range of people eligible to be so named is vast - potentially jeopardizing the rights and liberties of the approximately 20 million aliens in the United States, as well as any non-United States citizen anywhere in the world. The only cognizable standard for the tribunals' jurisdiction is appreciably toothless: All it takes is the President's unilateral written statement that he has "reason to believe" either that a particular noncitizen has at some point committed, or aided and abetted, what the President deems an act of "international terrorism," or that a person is, or at any point was, a member of a named terrorist organization (al Qaeda). n4 ...
The Order explicitly permits the tribunals to "sit at any time and any place" - including the United States. n6 While the Military Order's procedural protections fall conspicuously short of those most Americans take for granted, n7 the Secretary of Defense is authorized to provide further protections through regulation. n8 Such regulations are necessary to cure [*1262] some of the dramatic problems plaguing the Order, such as its authorization for the tribunals to operate in secret, without any publicity to check their abuses and with no threshold requirement of a showing that such secrecy is needed, n9 and its grant of permission to impose the death penalty without a unanimous vote either on guilt or on the sentence. n10 Even with regulations to plug those holes, however, the tribunals would by design eschew both grand jury presentment and jury trial, and would employ - as the triers of fact and law - military officers who lack the insulation of Article III judges, being wholly dependent on the discretion of their military superiors for promotions and indeed for their livelihood. Furthermore, the Order does not guarantee an appeal from any conviction or sentence to judges independent of the executive branch. n11 Rather, language in the Order strongly suggests a desire to eliminate even habeas corpus review of the legality of the entire scheme and of the tribunals' jurisdiction over particular individuals. n12
[*1263] The Order is so written that virtually any act by an alien, anywhere, could, in theory, give the President "reason to believe" the alien either has or once had some form of tribunal-triggering involvement with some international terrorist organization. n13 The Order expressly covers all those who have ever "aided or abetted" terrorists "or acted in preparation []for" terrorism. n14 In contradistinction to its harboring provision, which covers only those who "knowingly harbored" terrorists or members of al Qaeda, this provision conspicuously contains no mens rea requirement at all. n15 And if the Order is taken to supply the substantive definition of the offenses triable by, as well as to outline the jurisdiction of, the tribunals, then the absence of a mens rea requirement would bring within the Order's sweep a vast sphere of entirely innocent conduct, such as hiring a car for a friend when the friend turns out to be a terrorist, or donating money to a charity when that charity turns out to be a front for terrorism. We hope the Order was not intended to try to criminalize such acts, but its words encourage the broadest of constructions, and its vagueness invites arbitrary and potentially discriminatory determinations as to which categories of persons, or indeed which specific individuals, are to submit to a military trial, and which are to be spared that burden.
The White House Counsel has promised that the Order would not reach any but "foreign enemy war criminals" - whatever that might mean. n16 The Geneva Conventions limit the ways regular soldiers who surrender or are captured may be treated, and we take it as given that the tribunals contemplated by the Order would be vested with no authority to try soldiers recognizable as such. Only "unlawful combatants" - a category first recognized by the Supreme Court in 1942 but reflecting a long-standing distinction - may be tried in military tribunals. n17 This limitation could pose [*1264] a problem in a case such as that of captured Taliban footsoldiers whom our military leaders suspect of harboring, or working in close concert with, al Qaeda. Unless such combatants happen to be among al Qaeda's leadership, they are unlikely to have been sufficiently responsible for that group's terrorist acts to count as unlawful belligerents.
To be considered lawful belligerents, soldiers must "carry arms openly," "have a fixed distinctive emblem recognizable at a distance," and "conduct their operations in accordance with the laws and customs of war." n18 In circumstances in which persons "on the approach of the enemy spontaneously take up arms to resist the invading forces," however, the requirement of recognizable military uniforms is relaxed under international law. n19 This would suggest that some of those fighting on behalf of the Taliban in Afghanistan - and thus some whose status the President has been unwilling to resolve on an individualized basis despite the Geneva Convention's requirement that "any doubt" about status be "determined by a competent tribunal" n20 - might in fact qualify as lawful belligerents and be entitled to relief on habeas corpus from detention other than as prisoners of war with all of the protections that flow from that status. The September 11 hijackers and those reasonably believed to have conspired with them, in contrast, could not so qualify. n21 Again, we assume that the Order reaches [*1265] only unlawful belligerents (despite the absence of language in the Order so restricting it), but its vagueness on that score is deeply troublesome. n22
As such ambiguities reveal, the next steps require legislation if the administration hopes to use military tribunals and defend them from judicial invalidation, especially when many of the acts made subject to their exclusive jurisdiction at the stroke of the President's pen would otherwise fall within the jurisdiction of civilian courts created by Congress and fully capable of adjudicating the cases the President would remove from their ambit. Surely, it is not within the President's power to detain, and to threaten with trial by a military tribunal, anyone who associates with agents of terror. n23 Yet the Order installs the executive branch as lawgiver as well as law-enforcer, law-interpreter, and law-applier, n24 asserting for the executive [*1266] branch the prerogative to revise the jurisdictional design of the system of criminal justice and leaving to the executive the specification, by substantive rules promulgated as it goes along, of what might constitute "terrorism" or a "terrorist" group and a host of other specifics left largely to the imagination. This "blending of executive, legislative, and judicial powers in one person or even in one branch of the government is ordinarily regarded as the very acme of absolutism." n25
...The moment the President moves beyond detaining enemy combatants as war prisoners to actually adjudicating their guilt and meting out punishment...he has moved outside the perimeter of his role as Commander in Chief of our armed forces and entered a zone that involves judging and punishing alleged violations of the laws, including the law of nations (which encompasses the laws of war). In that adjudicatory and punitive zone, the fact that the President entered wearing his military garb should not blind us to the fact that he is now pursuing a different goal - assessing guilt and meting out retrospective justice rather than waging war. Contrast, for example, a prisoner of war punished for infractions committed while detained in that capacity (such as killing prison guards or injuring fellow prisoners) with a captured combatant punished for wantonly slaughtering unarmed and wholly innocent civilians. The first case is ancillary to the commander-in-chief function; the second is logically, morally, and legally separable....
Nothing even close to that World War II authorization, or a wartime emergency in which Congress's consent cannot be obtained, is present today. Significantly, the Resolution passed by Congress several days after the September 11 terrorist attacks permits only the use of "force"; applies only to persons or other entities involved in some way in the September 11 attacks; and then extends only to the "prevent[ion of] ... future acts of international terrorism against the United States by such nations, [*1285] organizations or persons." n96 In this Resolution, Congress studiously avoided use of the word "war." Representative Conyers, for example, stated that "by not declaring war, the resolution preserves our precious civil liberties" and that "this is important because declarations of war trigger broad statutes that not only criminalize interference with troops and recruitment but also authorize the President to apprehend "alien enemies.'" n97 But the Order, unlike Congress's Resolution, in no way confines its reach to those involved in the September 11 attacks: It explicitly asserts the power to try any "international terrorist" anywhere in the world. n98 No matter how broadly the statutes and precedents are stretched, there is no constitutional warrant for expanding the military tribunals' authority in just the way Congress refused to expand presidential power - to cover individuals completely unconnected to the September 11 attacks.
Second, there was a pair of statutes (Articles 81 and 82) explicitly authorizing trial by military commission for spying and providing aid to the enemy in Quirin, and the eight defendants [= Nazi saboteurs who landed on American soil in the midst of World War II carrying explosives and wearing uniforms that they promptly buried] were tried for, among other things, these violations. By contrast, the Order promulgated by President Bush, and the legal claims he has made about the commander-in-chief power, are in no way tethered to any similarly explicit legislative authorization. Rather, the President's Order extends the range of offenses that it makes subject to military tribunals to include "any and all offenses triable by military commission" - not just acts of unlawful combatants that [*1286] offend the laws of war, but also "violations of ... other applicable laws." n99 Unlike the specific laws in Quirin, neither the terrorism statutes on the books as of September 11, nor the ones that Congress enacted afterward, provide for a military trial for acts of terrorism. n100
These differences are exacerbated by an important distinction between the Nazi saboteurs and members of al Qaeda. Unlike the status of the eight Nazis who abandoned their uniforms, that of al Qaeda members as "unlawful belligerents" is incapable of being ascertained apart from their ultimate guilt of planning and executing acts that massacre unarmed civilians and thereby violate the laws of war. The result is that any determination today, either by the President or by an Article III court on habeas review, of the jurisdiction of the military tribunals is necessarily bound up with the merits of the substantive charges against a particular defendant. At least in Quirin it was possible for the Court to say, from the undisputed fact that it had before it Nazi soldiers who had deliberately abandoned their military garb to pass unnoticed among the civilian population, that the defendants - being analogous to the spies prosecuted by tribunals at the time of the Founding - had no historically grounded right to the usual protections of jury trial and the like, even if ultimately innocent of the charges against them. The present Order, by contrast, makes the jurisdictional question (whether someone is subject to a military trial at all) the very same one as the question on the merits (whether the person is guilty of a war crime). n101
These distinctions - that Quirin involved a total, declared war, with unlawful belligerents identifiable in terms distinct from the merits and with charges that were coupled to statutes that explicitly authorized a military trial - should be viewed against the backdrop of the language in the opinion going out of its way to say that the Court's holding was extremely limited. n102...
...Finally, to the extent that Quirin did provide the President with broad authority in interpreting Article of War 15, there are reasons to discount the case itself as statutory precedent. After all, just two years after Quirin, the same Supreme Court upheld government orders that imposed severe curtailments of liberty on Japanese Americans during World War II in the infamous Korematsu case. n115 Justice Frankfurter, with characteristic [*1291] understatement, called Quirin "not a happy precedent." n116 As David Danelski has shown, a principal reason for authorization of these military tribunals was the government's wish to cover up the evidence of the FBI's bungling of the case. n117 And it also appears that some highly questionable ex parte arm-twisting by the executive may have spurred the Supreme Court's unanimous decision. n118 Despite the Court's sometime-adherence to a strong stare decisis rule for its own prior legislative interpretations, the Court does at times overrule them - over eighty times in twenty-seven years, according to one incisive analysis. n119 Quirin plainly fits the criteria typically offered for judicial confinement or reconsideration: It was a decision rendered under extreme time pressure, n120 with respect to which there are virtually no reliance interests at stake, n121 and where the statute itself has constitutional dimensions suggesting that its construction should be guided by relevant developments in constitutional law. n122......
3. Habeas Corpus
The need for effective habeas corpus review should independently drive Congress to act even if political inertia would otherwise lead it to remain inactive. The Bush Administration has argued that, despite its textual prohibition of any judicial relief whatsoever, the Order does not mean what it says, so that habeas petitions may be considered (although the administration would limit such petitions to challenges to a tribunal's [*1305] jurisdiction, in cases where persons are detained or tried domestically). n169 Congress will need to establish fair procedures for habeas review and to vest lower courts with jurisdiction to hear these cases.
If habeas corpus review is to have any independently protective bite at all, Article III courts will somehow have to police the line between lawful and unlawful belligerents. But doing so will prove to be exceedingly difficult, both substantively and procedurally. Substantively, a broad definition will sweep in persons who have done nothing more than voice political support for al Qaeda; a narrow one might exclude those likely to engage in future acts of terrorism. In the end, courts will be called upon to posit some meta-rule assuring, at the very least, that not every imaginable individual - including each United States citizen - will be triable militarily merely upon the unilateral assertion of our Chief Executive that he has reason to believe the individual is part of an ongoing, and perhaps never-ending, war crime.
This substantive difficulty is exacerbated by the fact that noncitizens can protect their right to a civilian trial (and the right to be free of detention pending trial by military tribunal) only by disproving the merits of the underlying allegation of criminal activity. n170 More remarkable still, because the present circumstance involves an entirely protean and amorphous organization or set of organizations whose membership and, indeed, whose very existence may be impossible to define fully without reference to the specific terrorist acts they are accused of plotting or carrying out - witness the very terms of Congress's Resolution authorizing the use of force - the attempt to address the issue of military jurisdiction ex ante, and in a relatively antiseptic way distinct from the proceedings on the merits, may fail altogether. n171
Procedurally, civilian courts will have to decide these habeas cases on the basis of information most of which is likely to be classified and highly sensitive, so that many of the problems that have been invoked to explain the need for the Order in the first place - such as the risk of releasing classified information in open court - may come back to haunt us in habeas proceedings. Although Congress has passed legislation permitting the closure of civilian criminal trials when classified evidence is at issue, it has never extended such laws to the habeas context. n172 It was thus no accident [*1306] that Congress, in the Antiterrorism and Effective Death Penalty Act of 1996, specifically established a "terrorist removal" court, armed with the special power to remove terrorist aliens from the United States on the basis of classified evidence. n173 The absence of congressional authorization for the Order's military tribunals thus perversely winds up harming the administration's purported goal: to permit individuals to be brought to justice without disclosure of sources and methods in open court.
Moreover, without appropriate legislation, many habeas corpus petitions would face hurdles so substantial that, without close congressional attention, habeas review would provide little beyond a fig leaf. n174 Under current law, writs of habeas corpus can be "granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." n175 While this rule is not rigidly applied, n176 it may prevent a defendant from bringing a habeas claim in any district court, as it [*1307] is not clear which district court would be an appropriate venue when the petitioner's custodian is outside the territorial United States and when the petitioner's "body" is outside the country as well. Yet giving the defendant the capacity to bring suit in any district court could lead to damaging forum-shopping. Indeed, the precursor to the present habeas statute included the phrase "within their respective jurisdictions" precisely to avoid such shopping. n177 However, there are cases suggesting that, despite these concerns, jurisdiction may lie in lower courts to hear habeas petitions from citizens who are abroad. n178 The language of the Military Order cannot by itself restrict habeas review, given the "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." n179 In any event, legislation expressly providing that lower courts may entertain habeas corpus petitions from those detained abroad would clarify the issue considerably while affording additional safeguards against abuse.
Such safeguards are needed especially because jurisdictional problems will likely prevent the Supreme Court from hearing habeas corpus petitions if they are not first filed in lower courts. n180 And even if some creative way to surmount those jurisdictional problems can be found, Supreme Court Rules say that "to justify the granting of a writ of habeas corpus, the petitioner must show that exceptional circumstances warrant the exercise of the Court's discretionary powers." n181 In many post-World War II cases, the Supreme Court rejected leave to file petitions for such original writs. n182 [*1308] These decisions were rendered in spite of the fact that, in some of the cases, there was cause for grave concern about the integrity of the proceedings. Consider Everett v. Truman, n183 where seventy-four Germans on trial at Dachau sought relief because unbeknownst to them, the prosecutors had been conducting mock trials with them, complete with fake judges, prosecutors, and defense counsel. Fake witnesses provided evidence against the prisoners in order to get them to write confessions. The prisoners were brought to the "courtroom" covered with black hoods, and the "room where these proceedings was held contained a table covered with a black cloth on which stood a crucifix and burning candles." n184 Nevertheless, the Court dismissed the case. n185
In the end, even if courts hear habeas cases, without suitably sculpted legislation the prospect of habeas review could require the disclosure of intelligence information in such proceedings - a prospect that could lead courts to water habeas review down to nothing more than a hollow formality.... ***** -- Yoshie
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