1. Constitutional Law I Spring 2004 Military Tribunals Sept. 1, 2004

2. Types of military tribunals Courts martial War crimes tribunals Military commissions Historically used for "unlawful" combatants

3. Executive & Military Orders Pursuant to President’s Art. II power Power delegated by Congress Core Art. II powers  Commander in Chief  Chief Executive (“he shall take Care that the Laws be faithfully executed”) Force of Law Reviewable by federal courts

4. Military Order of Nov. 13, 2001 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Findings “it is necessary for individuals subject to this order.. To be detained, and … tried … by military tribunals.” “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 US district courts.” “an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest …” Note how these findings resemble those found in legislative acts

5. Who subject Any person not a US Citizen whom That the president (or delegate) has reason to believe Is a member of al Qaida, Has committed or aided an act of int’l terrorism, or Has harbored any of the above

6. Detention At an appropriate location Treated humanely … in accordance with such other conditions as SoD prescribes

7. Challenging Detentions Habeas corpus clause, Art. I, § 9, cl. 2: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas corpus statute, 28 U.S.C. § 2241 “(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”

8. Challenging Detentions Rasul v. Bush (2004) “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." "Executive imprisonment has been considered oppressive and lawless since [King] John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.”

9. Challenging Detentions Rasul v. Bush (2004) “Federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” Stevens “The Commander in Chief and his subordinates had every reason to expect that internment of combatants at Guantanamo Bay would not [be reviewable]… For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders … is judicial adventurism of the worst sort.” Scalia

10. Challenging Detentions Hamdi v. Rumsfeld (2004) “An unchecked system of detention carries the potential to beocme a means for oppression and obuse of others…”  Justice O’Connor (majority opinion) “The Executive’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial review.”  Justice Thomas (dissent) Link to SCt. briefs in Guantanamo cases Amicus brief by Fred Korematsu

11. Interrogation War Crimes Act (18 USC § 2441) Prohibits commission of “war crime”  defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949 Bush Memorandum (Feb. 7, 2002)Memorandum “none of the provisions of Geneva [convention] apply to our conflict with Al-Qaeda” “I have authority under the Constitution to suspend Geneva as between US and [Taliban]” White House Counsel “Torture Memo” (Bybee) White House Counsel “Torture Memo” DoD Working Group on Detainee Interrogations Table of Approved Interrogation Techniques White House Counsel Memo on Geneva Conv.

12. Trial By military commission [pursuant to] orders and regulations issued by SoD Composition (3-7 military), venue and time Admission of probative evidence "in a manner consistent with the protection of classified information“  Some standard criminal procedures adopted Conviction by 2/3 of commission  proof “beyond a reasonable doubt”

13. Trial – Military Tribunal Appeal and review by SoD or President  Upon recommendation by 3 officer review panel Sentence May include life imprisonment or death

14. Relation to Art. III courts Military Tribunals are Art. II courts No recourse to other courts “the individual [tried] shall not be privileged to seek any remedy or maintain any proceeding … in (i) any court of the United States, (ii) any court of any foreign nation, or (iii) any int'l tribunal.” Agency Courts in general Upheld against SoP claims because, in part, decisions are reviewable by Art. III courts. Ex. Bankruptcy, Immigration

15. Constitutional Issues Structural – Separation of Powers Does President “usurp” Art. III powers?  Art. III, § 2, ¶ 1: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the US, and Treaties” Does Military Order “obstruct” Art III functions?  Preclusion of review by Art. III courts Does Military Order “usurp” power of Congress  Art. I, § 8, ¶ 11: “to declare war.. and make Rules concerning Captures on Land and Water”  ¶ 14: “to make rules for the Government and Regulation of the land and naval Forces”

16. Constitutional Issues Substantive – Criminal Procedure Rights 5 th Amendment –  “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia”  “nor be deprived of life, liberty, or property, without due process of law” 6 th Amendment –  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”

17. United States ex rel. Quirin (1942) German sabateurs tried by military court appointed by President  created & rules prescribed by Executive Order  judicial review prohibited  convicted by military court of violating the law of war (int’l law) and Articles of War (domestic)  Sabotage and espionage  E.g., failure to wear “fixed and distinctive emblems”?  Apply to Taliban? Al- Qaeda?

18. Ex parte Quirin Can USSC even hear the case? Court always has jurisdiction to determine its jurisdiction  If Order of July 2, 1942 (or Nov. 13, 2001) precluding judicial review were unconstitutional, the Court would have power to invalidate it  Compare Ex Parte McCardle

19. Ex parte Quirin Congressional Authorization Do the Articles of War authorize military courts?  Article 12 – makes triable by general court-martial "any other person who by the law of war is subject to trial by military tribunals."  Article 15 – “The Articles shall not be construed as depriving military commissions... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions.“ Does the Law of War (incorporated by statutory reference) authorize military tribunals?

20. Ex parte Quirin Congressional Authorization Lawful vs. unlawful combatants  Article 82 – “ Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifi- cations, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court martial or by a military commission, and shall, on conviction thereof, suffer death.” J. Stone in Quirin:  “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”

21. Military Commissions Constitutional Issues Due Process Ex parte Milligan: (armed uprising during Civil War) J. Davis: “Martial law … destroys every guarantee of the Constitution … Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.” No military trials of citizens, at least if civilian courts are open

22. Military Commissions Constitutional Issues Due Process Declaration of independence: causes for separation - King George III has “affected to render the Military independent of and superior to the Civil Power.” “depriving us, in many Cases, of the Benefits of Trial by Jury”

23. Military Commissions Constitutional Issues Due Process  Do military tribunals satisfy 5th, 6th, 14th amend’s? Conviction by 2/3 vote of judges Open or closed proceedings Review by President pursuant to pardon power Writ of habeas corpus suspended

24. Military Commissions Constitutional Issues Due Process  Do military tribunals satisfy 5th, 6th, 14th amend’s? According to J. Stone, the right to trial by jury (see also Art. III, § 3) adheres only in “those cases in which it had been recognized by the common law.” What theory of interpretation does J. Stone use here?

25. Citizens as Enemy Combatants Any difference as far as Bill of Rights? Stone – "We cannot say that Congress in preparing the 5 th and 6 th Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission" Is this still good law?

26. United States ex rel. Quirin (1942) More on the Quirin Case  Convictions upheld for violating the law of war  affirmed by per curiam immed. after arg  opinion issued 2 months after execution