Saturday, July 16, 2005

The Constitutionality of Military Tribunals


The D.C. Circuit held yesterday in Hamdan v. Rumsfeld that President Bush had authority to create military tribunals to try Salim Ahmed Hamdan, who was Osama Bin Laden's driver in Afghanistan between 1996 and 2001, and who the Administration claims was an active Al Qaeda operative.

From a constitutional perspective, the most important thing about the decision is its holding that Congress had authorized military tribunals. This result in itself is not surprising, because of the combination of the September 18, 2001 Authorization of the Use of Military Force, and provisions in the Uniform Code of Military Justice that seem to contemplate the creation of military commissions. One of these, 10 U.S.C. section 821, was the basis for the Supreme Court's decision in Ex Parte Quirin, which upheld the use of military tribunals to try Nazi saboteurs captured on American soil during World War II, including one saboteur, Haupt, who was an American citizen.

Nevertheless, the Hamdan case raises more questions than it answers. Just because Congress has authorized the President to create some military tribunals does not mean that it has authorized that all persons in military custody may be tried by these tribunals, nor does it establish that they may be tried for any and all charges.

President Bush's original executive order, issued on November 13, 2001, makes persons subject to trials by a military tribunal if the President determines that there is reason to believe that the individual is or was a member of the al Qaeda terrorist organization, "has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy," or has harbored such a person. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). Note that this Order does not define the term "acts of international terrorism." Obviously, the broader the term is defined, the more people could conceivably be swept up in the President's grasp. (For example, leaking the name of a CIA operative to the press could be an act of international terrorism, although one doubts this is what the Administration had in mind.)

On July 7, 2004, nine days after the Supreme Court's decision in Hamdi v. Rumsfeld, Deputy Secretary of Defense Paul Wolfowitz issued an Order creating military tribunals to review the status of detainees at the U.S. military base at Guantanamo Bay, Cuba. That order defined the term "enemy combatant" as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

The key constitutional problem is that both the President's original definition of persons subject to military tribunals and Wolfowitz's definition of enemy combatants subject to military tribunals are far broader than the definition of enemy combatants whose detention the Supreme Court claimed was authorized in its Hamdi Opinion. In Hamdi, Justice O'Connor's plurality opinion defined an enemy combatant as "an individual who . . . was 'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." Note that it is certainly possible that a different definition applies for enemy combatants the government may detain and enemy combatants the government has authority to try before military tribunals, but it is hard to see why the definition for those it may try should be broader than the definition for those it may detain, because in most cases it has to detain people before it can try them.

So the President's and Wolfowitz's defintions of who the tribunals apply to are far too broad given what the Supreme Court said Congress had authorized. It is likely that Hamdan himself would fall under the Supreme Court's narrower definition of enemy combatant, because the government claims that he worked for Osama Bin Laden in Afghanistan and trained at an Al Qaeda camp there. But there are many people who would not. In particular, Jose Padilla, who has been held in a military prison in South Carolina, does not fall under the narrower definition, and so there is still a very good argument that the President lacks authority to try him before a military commission.

Indeed, it is not at all clear that the President is constitutionally authorized to use military commissions against persons held at Guantanamo Bay if they were not part of or supporting forces hostile to the United States or its coalition partners in Afghanistan and fought against the United States there.

There are many other important issues in the Hamdan case, including the application of the Geneva Conventions, which I shall not address in this post. But the key point to take away is that even if the Supreme Court upholds the decision as to Hamdan himself, the decision does not and should not be interpreted to give the President a blank check to try anyone he wants in a military tribunal. The Administration and the D.C. Circuit claimed that the President is acting under Congress's authority. If so, we should take seriously the limited scope of that authorization.


It seems to me that it is a conflict between Article I powers and Article III powers and I think Article III should prevail. Even if under the Geneva convention the prisoner is not entitled to POW status and may be tried as a criminal, he should be tried in an Article III court. The Constitutional precedent for military tribunals is actually very thin. It was justified in the Civil War because of a civil war in which the civil authority had broken down and the civilian courts could not be trusted to function properly. The WWII German saboteur cases extended it -- in my opinion wrongly -- to "unlawful combatants".

I have no trouble subjecting terrorists to the death penalty. But we have a very healthy and functional Article III judicial system capable of doing the job. We do not need military tribunals.

You claim that "In Hamdi, Justice O'Connor's plurality opinion defined an enemy combatant as 'an individual who..."
The complete quote makes it clear that the court was not defining the bounds of the term at all but just that in one extreme set of facts it clearly applied: "There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who ..."
Thus the court explicitly does not comment in this case about just how far the term reaches.
Since you specifically mention the Quirin decision, it is useful to point out that Haupt did not meet the criteria specified in Hamdi, because he never engaged in combat with US forces or supported such combat. Haupt's story is, except for a 60 year time difference, essentially idential to that of Jose Padilla, another current Terrorism case. Both were US citizens who, motivated by ideology, when overseas and enlisted in a foreign army. Both were trained in explosives but never engaged in combat. Both were ordered, seven to eight months after the US entered a war, to go to the US and blow some stuff up. Both went to Chicago where both were arrested by the FBI and then, after their military status was determined, both were transfered to military custody. Haupt was tried by a Military Tribunal and executed. Padilla is waiting in jail for arguments before the 4th Circuit next week. I agree that Padilla cannot be tried under the President's current Military Tribunals, but only because they explicitly exclude US citizens. He can, however, be tried any time by a Court Martial and, if found guilty, the traditional punishment is hanging.
In Quirin, the court defined Haupt as an "unlawful enemy combatant" because he met a different criteria, an enemy soldier who in civilian clothes passes or attempts to pass through lines of defense.
There is no definitive definition of "unlawful combatant", but gathering different information from different sources shows that it includes 1) civilains who engage in combat with US forces, 2) enemy soldiers dressed as and pretending to be civilians, 3) non belligerents who engage in and support combat, even in a staff headquarters role (Johnson v. Eisentrager), and 4) Military Spies (Haupt, Padilla, Nathan Hale, etc.)
Enemy combatants are then unlawful combatants and lawful ones (regular enemy soldiers in uniform). Enemy combatants are not actually an interesting term here because lawful enemy combatants are protected by the Geneva Convention and may not be tried by a Military Commision except for fairly ordinary crimes (like rape) and war crimes.
The interesting problem then is not how to define either of these terms, but rather what if anything the government can do with detainees who are at best supporters of Al Qaeda. If they have not engaged in combat and have not tried to enter the US, then they are civilians. There appear to be a number of people in Guantanamo who were captured by intelligence agencies or bounty hunters and were turned over to the US. The President has tried to classify them as "unlawful combatants", but they do not fit any accepted definition of the term. Of course, they aren't the one's being tried in these particular cases, but you are right in pointing out that the criteria for the Tribunals does seem to stretch beyond actual combatants.
The reason why "enemy combatant" may be an important term is that under the Geneva Conventions, anyone classified as an "enemy combatant" cannot be charged with civilan crimes, tried in civilan courts, or sentenced to civilian jails. They can only be tried by a Court Martial or by an equivalent Military Tribunal. Thus if Bin Laden, as commanding officer of Al Qaeda, is defined as an "enemy combatant" and is captured, International Law will prevent him from ever being tried in a State or Federal District court.

Howard, I'm not sure that Padilla can be tried by a court martial, at least as I read Hamdi. You correctly point out that Bush's current executive order doesn't include citizens, but under Quirin he could surely change it if he wanted to.

The constitutional question is different: can the President try people in military tribunals in circumstances that Congress has not authorized? The Court in Hamdi deliberately read the Authorization of Military Force (AUMF) narrowly. It was not, as you suggest, simply to decide the case before it; but also to structure and limit Presidential power to detain and interrogate citizens free of the obligations of the Bill of Rights.

As I read the votes in Hamdi, Padilla, and Rasul, Padilla has a constitutional right to a hearing before an Article III court as to whether or not he is an enemy combatant who can even be detained by the President, much less tried by a military court. Whether he turns out to be a lawful or unlawful enemy combatant does not seem to me to be relevant to that constitutional question.

It is also possible that some of the people held at Guantanamo, who are not citizens, also cannot be detained under the current AUMF. Not surprisingly, the President wants to define enemy combatant as broadly as possible (again, the distinction between lawful and unlawful is beside the point for this purpose). But the key constitutional question is whether the President can define the term anyway he likes (see Wolfowitz's definition, for example) and claim that it is consistent with the AUMF. I don't believe that he can.

If Padilla is a captured enemy soldier, then he can always be tried by Court Martial for any military offense. He cannot be tried for planning to blow up apartment buildings and kill people, because that was his assigned mission. More importantly, if he had slipped into the US, rented the apartments, filled them with gas and explosives, and detonated them simultateously at night to collapse the buildings and kill thousands of people, as was the plan, he could not be charged with any civilian or military crime or tried for this in any court. It would be "combat". He can, however, be executed because he was wearing civilian clothes when he stepped off the plane into the International Arrivals area of O'Hare Airport (rendering him a Spy).

Haupt and the other seven German soldiers in the Quirin case were tried before a Military Tribunal, and subsequently some courts have held that such Tribunals must be specifically authorized by Congress. There is no such explicit authorization from Congress, so you are right that Padilla probably cannot be tried by a Tribunal.

Most people forget (becuase it produced no interesting case law) that the Germans tried it again in Nov, 1944. A U-Boat dropped William Colepaugh and Erich Gimple off the US coast. They were captured and, given the Quirin decision, the US had the option of using another Military Tribunal. However, it was the end of the War and there was no need for secrecy. They were tried by ordinary Court Martial, found guilty, and hung. Colepaugh had been born in Connecticut, so citizenship does not preclude trying an enemy soldier in a Court Martial for this particular offense (although his case did not go to the Supreme Court, so this is not definitive). Since there are absolutely no secrets in the Padilla case, it is unlikely that the US would use a Military Tribunal for Padilla even if Congress explicitly provided for one.

The really interesting legal question is how the adminstration can make two contradictory claims in the cases of Padilla and Crazy Zack. Both Padilla and Zacarias Moussaoui were sent by Khalid Shaikh Mohammed to the US to perform an attack. Zack was arrested a month before 9/11 at a time when the administration thought it wasn't at war. Once he got into the criminal justice system, he can't get out without a proper legal motion accepted by the judge. He hasn't articulated a coherent claim of military status, and no competent lawyer would advise him to do so. Any such claim would be evidence in a subsequent Court Martial that he was a Spy. Thus Zack has the option to trade in any sentence he receives in court, claim military status, get a second legal process, and probably end by swinging at the end of a military rope. If he gets a death sentence in court anyway it might sound like a better option. However, the government today is making one set of claims against Zack in civilian court, while it makes a contradictory argument for military status in the Padilla case.

Key here is the observation in Quirin that US Citizenship doesn't matter as a legal issue in a case involving POWs. Captured enemy soldiers are treated the same whether they are US Citizens or Enemy Aliens.

Certainly Hamdi says nothing about Courts Martial, but that is because the question was not before the court in any form.

Under Rasul, Padilla has a right to a hearing before a civilian court, but from the various rulings it is (consistent with Quirin) the same right afforded to citizens and non-citizens. Such a hearing would be civil litigation challenging the government's basis for his detention. It is unlikely that he will use this right because US forces captured his military records from the camp where he took basic training, plus he gave a complete statement containing his entire history, plus there is confirmation from his superior officers who are also (somewhere) in US custody.

There are two supreme laws involved here. In any process involving civilian courts, the Constitution is the supreme law of the land. However, Padilla is being held because he is an enemy soldier who also happens to be a US Citizen. In Military proceedings involving enemy soldiers, International Law is superior to the laws of any combatant country. To avoid the obvious impossible dilemma, a century of court decisions and state department negotiators have struggled to make sure there is no overlap.

If authorities take a criminal into custody, the first thing they have to say is. "You have the right to remain silent." The Constitution controls. However, when the military takes an enemy soldier into custody he does not have the right to remain silent. He is required under International Law to give name, rank, and serial number (or equivalent designation). That is all the authorites need to put him in a POW camp for the duration of the war. Padilla still retains all his Constitutional rights, but rights that automatically apply to criminal proceeds don't necessarily produce analogous rights as a POW. Of course, should he be subject to a Court Martial then Constitutional rights apply completely to whatever happens in that proceeding.

A US Soldier charged with an ordinary crime would go into the Court Martial with his Constitutional rights enforced at every step along the way. Padilla didn't lose those rights, but they were not relevent from the point when he was captured until he is formally charged. I suspect that someone will challenge this, but it is unlikely that such a challenge will prevail.

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