Antiterrorism Under International Law

ANTITERRORISM UNDER INTERNATIONAL LAW
Reason can wrestle and overthrow terror (Euripides BC 480-406, Greek Tragic Poet)

The post 9/11 landscape presents many questions regarding legal frameworks which should apply toward controlling international terrorism. Prior to 9/11, international terrorism was treated primarily as a criminal law matter, but since then the war on terror has been markedly different – evidenced by the decision to try international terrorists as enemy combatants, as well as a focus on enemies such as Islamic extremism and international Jihadism. The war is being fought in five strategic ways (according to the President's speech at the National Endowment for Democracy Oct. 6 2005): (1) preventing terrorist attacks before they occur; (2) denying WMD to outlaw regimes and terrorist allies; (3) denying radical groups the support and sanctuary of outlaw regimes; (4) denying militants control of any nation; and (5) denying militants any future recruits by advancing democracy and hope across the Middle East. According to the Foreign Policy Association's 2007 poll, 40% of the American public believe Jihadist terror represents a threat so great that previously accepted understandings of constitutional and international legal obligations are obsolete.

    Even though force has been used intermittently to combat terrorism and its state supporters in the past (e.g., Libya in 1986, bombing of Baghdad in 1993, and US missile strikes against Afghanistan and the Sudan in 1998), no precedent thus far is set for the force, magnitude and duration of the current US-led war on terror. One could speculate that the "American Way of War" (Vandiver 2005) has evolved progressively with the country's rise as a global hyperpower and is leaving antiquated institutions behind. In fact, one could argue that the processes of criminal law alone are inadequate to fight such a conflict, or even effectively deter it. By definition, a terrorist is someone, or some group, who fights beyond any legal characterization; and thus, effectively rejects their acts as being criminal in nature. Because they often fight for some larger ideological cause, criminal imprisonment may only represent a small price to pay for furthering that larger cause; and subsequently, may encourage or excite further terrorist acts on behalf of that cause. So, in terms of a deterrent, criminal law alone fails in that objective.

    Additionally, democratic law may, in fact, only serve to complicate the effectiveness of such a war. That is, because democratic societies are value-based, codified in positive law, they’re effectively prohibited from combating terrorism in certain arenas; such as constant surveillance, restrictions on travel, and torture. In effect, democratic regimes are limited by their own laws and values, and have decided not to become what they seek to eradicate. This point may be better illustrated when one considers that totalitarian regimes are relatively free from terrorism problems. Fighting a war with one hand tied behind your back seems to be the fate of democracies who pursue wars on terror.

    Much of the debate concerning how the law in general, and national security law in particular, should codify international terrorism evolves from difficulties in defining the practice. “One man’s terrorist is another man’s freedom fighter” is an oft-cited example of the complexities surrounding defining such an inherently vague term. For example, if the causes of terrorism, and their political motivations, become relevant (as the above quotation and most definitions suggest), then effectively any act committed in pursuit of a just cause would never constitute “terrorism.” That is, terror acts committed only for personal gain would qualify, while the slaughtering of children in the name of, say, national liberation or revolution would not.

    Many academics have contributed to the definitional debates, and the following examples give you some insights into their interpretations of international terrorism. Donald Snow (2003), for example, defines terrorism, in part, as “the use of unpredictable violence to achieve a political end.” In addition, Professor Jordan Paust (1983) submits a thorough definition as “the intentional use of force, or threat of violence, against an instrumental target in order to communicate to a primary target a threat of future violence so as … to coerce the primary target into [certain] behaviors or attitudes… [that] serve a particular political end.” Other definitions exist, some defining terrorism exclusively as a “war crime” (for this and others, see UN Treaty Conventions on Terrorism or alternatively, see the UN's CTC or Counter-Terrorism Committee as the world's best hope for a consensus over defining terrorism at the Resolution 1373 Sixth Committee website). For present purposes, we'll use the US Federal Criminal Code as guide for now.

    Additionally, “terrorist activity” also appears within 8 USC §1182(a)(3)(iii); whereby it’s defined broadly to include, in part, “any activity which is unlawful under the laws of the place where it is committed… which involves any of the following:

    (I) Highjacking (including an aircraft, vessel, or vehicle).
    (II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
    (III) A violent attack upon an internationally protected person… or upon the liberty of such a person.
    (IV) An assassination.
    (V) The use of any -
        (a) biological or chemical agent, or nuclear weapon or device, or
        (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property
    (VI) A threat, attempt, or conspiracy to do any of the foregoing [Source: Findlaw US Code Title 8 Section 1182 - Inadmissible Aliens]

Lastly, consider the definitions within section 2656f of Title 22; stating that:

    (1) The term “international terrorism'” means terrorism involving citizens or the territory of more than 1 country;
    (2) The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents; and
    (3) The term “terrorist group” means any group practicing, or which has significant subgroups which practice, international terrorism.

These definitions serve as a basis for a workable definition of the subject under discussion. Additionally, it may be instructive that you understand, generally speaking, that for purposes of national security law, “international terrorism” exists within three basic categories:

    (1) State Terrorism – viewed by most commentators as an international human rights issue, and refers of course to the use of terror by governments to suppress certain political enemies, domestic or abroad; through either genocide, torture, or assassination.
    (2) Terrorism in Armed Conflict – mostly covered under the Laws of War, such acts including the slaughter of noncombatants (in time of war) and prisoners-of-war.
    (3) International Terrorism by Private Individuals – although such acts within this category may in fact be supported, at times, by certain state regimes, the distinguishing factor here is the “nongovernmental” status of the actor. Additionally, this category, and its recognition of non-state actors, will serve as the focal point of our discussions regarding national security law and terrorism.

The classic case regarding validity of designating organizations as terrorists is People's Mojahedin Organization of Iran v. Department of State and Colin Powell (sometimes abbreviated as Organ of Iran v. Powell 2003). The case is so important, the following brief is presented for understanding, as follows:

Organ of Iran v. Powell (327 F.3d 1238, 356 U.S.App.D.C. 101) 2003

     FACTS IN THE CASE
     An Iranian dissident organization (PMOI) petitioned for review of its designation as an FTO ("foreign terrorist organization") under the Antiterrorism and Effective Death Penalty Act (AEDPA) on constitutional grounds as well as the fact it was an organization dedicated to overthrowing the same despotic regime in Iran that the US government was opposed to. The Court of Appeals held that (1) the Secretary of State's consideration of classified material in making designation did not violate the due process clause; (2) any due process violation was harmless; and (3) the claim that the organization's actions could not be construed as terrorism because the organization itself was formed to fight other State Department-designated sponsors of terrorism was nonjusticiable. Petition was denied.
     ISSUES IN THE CASE
     1. Did the exercise of the Secretary of State's war and national emergency powers involve any possible due process violations from non-disclosure of classified information and in making a terrorist designation?
     2. Are the Executive Branch powers to determine who is a terrorist and who is a terrorist supporter, and vice-versa, a matter of nonjusticiable foreign policy, open to dispute, and/or subject to adequate judicial review?
REASONING AND ANALYSIS
     The Court noted that this was the third time PMOI attempted to seek review, irrespective of any urgency associated with blocking of funds via enforcement of AEDPA. It was further noted that AEDPA expressly states that the Secretary of State is to consider classified information in making a designation and that such classified information is not subject to disclosure, except to a reviewing court ex parte and in camera per 8 U.S.C. § 1189(a)(3)(B). A designation under the Act persists for two years, and the Secretary may re-designate a foreign organization for succeeding two-year periods, affording plenty of time for discretionary review. In order to be so designated, three findings must be based on the administrative record, that:
A. the organization is a foreign organization;
B. the organization engages in terrorist activity ...; and
C. the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.
   The Appeals Court of DC is further empowered under § 1189(b) to hold unlawful and set aside designations found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or
(E) not in accord with the procedures required by law.
     The constitutional claim that designation procedures violated due process rights to notice and hearing can be easily disposed of, holding that any foreign entity without property or presence in this country has no constitutional rights under the due process clause. There is no dispute as to whether the foreign organization was a foreign organization; it was. Whether or not its terrorist activity threatened the national security of the US was held at present to be a nonjusticiable question, best left to Executive Branch judgment since such judgments represent "decisions of a kind for which the Judiciary has neither the aptitude, facilities, nor responsibilities, and has long been held to belong to the domain of political power not subject to judicial intrusion or inquiry" [citing Chicago & Southern Air Lines v. Waterman Steamship Corp 1948]. Left solely with the question of the sufficiency of administrative record to support the determination that "the organization engages in terrorist activity," the Court found the Secretary of State's record sufficient.
     EXCERPTS FROM THE CASE
     Colorful arguments [stemming from Abourezk v. Reagan 1986 claims to due process rights] will not carry the day. The non-disclosure of ex parte and in camera information [occurs in conjunction with] required notice that the designation is impending and an opportunity to be heard at a meaningful time and in a meaningful manner, which the Secretary of State complied with.
     Even if the record [here] supported a finding of violation of due process, such a violation would be harmless as the unaffected portion of the record is ample to support the determination made. The public, unclassified administrative record contains more than enough evidence to support the determination that the petitioner engaged or engages in terrorist activity. The government followed the required procedures as set down in Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C.Cir.2001).

This section picks up on a broader look at some of the modern approaches taken to combat the problem, attempting to analyze the legal legitimacy of certain national security positions taken by the Bush Administration as well as attempting to incorporate international law on the subject. Although many efforts have been put-forth, but none fully ratified, to comprehensively define the terrorist act within the global community, the “piecemeal” approach seems to be the methodology most commonly followed. This approach consists primarily of various global treaties, and numerous regional conventions and bilateral agreements; all in an effort to essentially combat terrorism from different angles, some dealing specifically with international terrorism itself, while others addressing it only within the framework of various other crimes and issues. For example, the United Nations has adopted many antiterrorist conventions dating back to the 1960’s [See UN Conventions Against Terrorism] A few conventions are discussed below:

The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), which, in part, mandates nation-states a party to the Convention to cooperate in preventing and preparing for attacks against diplomats, exchange information readily (such as the identity and whereabouts of suspects who fled to other countries), even apprehend offenders and hold them, as well as encourage (not mandate) the extradition of suspects between State parties.

The UN Convention Against the Taking of Hostages (1979) incorporates hostage-taking as a “grave breach” under the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; not to mention, the Hostage Convention also represents a partial rejection of the thesis that acts of terrorism are permissible if committed as part of a war on national liberation (Moore & Turner 2005).

The International Convention for the Suppression of the Financing of Terrorism (1999), and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1997) – the former aimed directly at tightening controls, freezing assets, and generally heightening the culpability of entities that actively fund terrorism; and the latter focusing on the termination of chemical weapons by the year 2010, as well as creating verification procedures to ensure such measures are complied with.

Numerous Regional Conventions and Bilateral Agreements also exist, addressing international counterterrorism efforts within certain contexts. While some usefulness in the fight on terror is gained from such agreements, questions still abound over their commitment (in force) to adhere to extradition and prosecution requirements. Most notably, such agreements lack strength and consistency in regards to extradition. For example, both the Arab Convention on the Suppression of Terrorism and the OAU Convention on the Prevention and Combating of Terrorism raise exceptions to the extradition (and prosecution) of suspected terrorists if the political offense doctrine applies (explained below). Article 2(a) of the Arab Convention states that “[all] cases of struggle… against foreign occupation and aggression for liberation and self-determination, in accordance with the principles of international law, should not be regarded as an offense. This provision shall not apply to any act prejudicing territorial integrity of any Arab State” (presumably included to protect terrorists acting against Israel). Similarly, Article 3(1) of the OAU Convention proposes that any act, taken in furtherance of liberation or self-determination against colonialism, occupation, aggression, or domination by foreign forces, shall NOT be considered a terrorist act. While such provisions are in sharp contrast to Article 5 of the UN Bombing Convention, which, in part, states that terrorist bombings are “under no circumstances justifiable by… political… ideological… religious or other similar nature, and are punishable by penalties consistent with their grave nature,” the inconsistencies (and many others that exist) are illustrative of the loose and incoherent effort to combat international terror.

The political offense doctrine is not foreign to American jurisprudence. In fact, US courts in three specific cases declined to extradite IRA members to the United Kingdom relying, in part, on the political offense doctrine (In re McMullen (N.D. Cal. May 11, 1979), In re Mackin (1981, unreported), and US v. Doherty, 786 F. 2d 491 (2d Cir. 1986)). However, it should be noted that in Doherty, deportation was used as an alternative to extradition. Doherty was wanted for the murder of a British soldier, and escape from prison. The Supreme Court upheld his deportation to Northern Ireland; and thereafter, US courts have recognized that when extradition treaties exist between two countries (as between the US and the United Kingdom in the Doherty case), other means (like requested deportation) may be used to obtain the custody of criminals seeking refuge abroad.

In addition to extradition concerns, prosecution of international terrorism appears as problematic and unreliable. Some foreign states are outrightly unwilling to prosecute (presumably why the terrorist fled there in the first place), while others lack either the evidence necessary or the statutory legal basis required, to secure a successful prosecution. Further, prosecution by foreign states presents additional problems as to the availability of witnesses, and whether the US is willing to reveal certain intelligence sources and secret information within such forums. In response, many have called for the trying of international terrorists, not within the ordinary courts of UN member states, but rather in new “ad hoc tribunals” -- either those exclusively within the Islamic community, or those made up of judges from both the Islamic world and the Western world. Moreover, others are calling for the UN Security Council to expand its current jurisdiction and establish an international tribunal (or international court) along the lines of the Nuremburg Trials, or those created to specifically to prosecute the war crimes of the former Yugoslavia and Rwanda. Also, the newly created International Criminal Court (ICC), which would carry universal jurisdiction, has been proffered as an alternate solution to the prosecution of international terrorists. A few problems emerge here right away – (1) the ICC jurisdiction does not cover international terrorism specifically, although it’s argued that such crimes would fall under the Court’s authority over “crimes against humanity;” and (2) the Court carries no retroactive jurisdiction to, say, adjudicate the 9/11 attacks. In fact, the US has, to date, refused to sign the ICC treaty; citing, among others issues, the concerns over forgoing ample amounts of sovereignty in prosecution matters, the fear that the Court would be used to target US servicemen partaking in peacekeeping missions, and many of the same worries mentioned above concerning conflicting evidentiary standards.

Effectively, only one precedent, to date, exists that closely mirrors the idea of the international adjudication of international terrorists. Following the bombing of a Pan Am flight over Lockerbie, Scotland, it took some eleven years for Libya to give up two intelligence operatives for trial; and this was accomplished only because of one very important underlying compromise – that is, the UN Security Council agreed to loosen economic sanctions against Libya. The “neutral” trial, located in the Netherlands and adjudicated by three Scottish Judges applying Scottish law, resulted in the guilt of one defendant for murder, while the other was acquitted. Needless to say, the results of the trail, the procedures within, and the political deal-making underlying its origin represent a less-than-encouraging model for international adjudication. If anything, it’s illustrative that no workable permanent international medium exists to try international terrorists, absent some underlying political deal-making.

Soon after the 9/11 attacks, President Bush was faced with a challenging decision – how exactly to fight the war on terror. If he chose the traditional route (see US v. Rahman; 1993 bombing of World Trade Center) through criminal investigation and prosecution, he faced the very real prospect of criminal proceedings within federal courts or even international courts and tribunals; not to mention, extradition or rendition procedures and dilemmas, and the certain Constitutional safeguards of due process (rights inherent under the Fifth, Sixth, and Eighth Amendments. Or, alternatively, the President could choose a broader military and diplomatic response in his efforts to eradicate terrorist organizations and those who supported them. Ultimately, the importance of this latter decision was that “waging war does not, for the most part, implicate the protections, constitutional or otherwise, inherent in criminal proceedings” (Shanor & Hogue 2003). As criminal law generally takes a backseat during wartime efforts, the President effectively chose “war” as America’s tool to combat terrorism; even though he did so in the absence of an official Congressional declaration of war, a traditional state opponent (terrorism is generally thought of only as a network, not a state), and no indication of its eventual end (that is, how can a stateless network with many detached parts come together to effectuate a surrender on behalf of all terrorist organizations?). However, this is not to suggest that the President’s tactical decision is beyond his executive power; citing, in part, his national emergency powers under the War Powers Resolution and the recently enacted “Authorization for Use of Military Force Joint Resolution” (called Senate Joint Resolution 23 or Public Law 107-40, 115 Stat. 224); which, in effect, authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the attacks; and recognized the President’s authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” (quoting Hamdan v. Rumsfeld, 2005 WL 1653046 (D.C. Cir. July 2005).

Let's examine the legitimacy of the Administration’s firm national security position and Military Order that detained terrorists are to be tried as “unlawful combatants” (rather than POWs) via US military tribunals; a position both challenged and defended under international law and US constitutional law. (See the President’s Military Order dated November 13, 2001; Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (2001)). Because military tribunals carry distinct advantages over civilian trials (no civilian judge or jury present, admission of evidence otherwise inadmissible in civilian courts, suspension of certain constitutional guarantees, etc.), one should carefully study some of the relevant caselaw pertaining to this controversial national security and foreign policy decision. The following is an analysis of that caselaw:

Ex parte Milligan, 71 US (4 Wall.) 2, US Supreme Court, 1866
Habeas Corpus – “that you have the body” or Generally, that the [Great Writ] is employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal. (Black’s Law Dictionary 2003)

     FACTS IN THE CASE
     Plaintiff was a US citizen, a resident of Indiana and not a member of the armed services. He was arrested in 1864 for planning to raid a federal arsenal in Indiana and use its munitions to free Confederate soldiers in an attempt to mount an assassination attempt against the Indiana governor. The plaintiff was taken into custody by the Commander of the Military District in Indiana, and subsequently tried and convicted before a military tribunal without a jury. He was tried for “violations of the laws of war”, and sentenced to hang for his crimes. The plaintiff challenged the ruling, in pertinent part, contending that the military tribunal had no jurisdiction over him. The Supreme Court delivered an opinion in 1866, effectively agreeing with the plaintiff, and ordering his discharge from military custody.
     ISSUES IN THE CASE
     Did the military tribunal have the legal power and authority to try and punish a US citizen of Indiana who was not a resident of one of the rebellious states (remember, Civil War Era), and not a member of the armed forces?
     REASONING
     Ultimately, the Court answered this issue in the negative because of the following reasons. They recognized, first and foremost, the importance of Constitutional guarantees, and no erosion from those guarantees were necessary within this factual context. The Court reasoned that a doctrine proclaiming that any provision of the Constitution can be suspended during great emergencies is a doctrine that “leads directly to anarchy and despotism.” “The Constitution… is a law for rulers and people, equally in war and in peace, and covers with the shield of its protections all classes of men, at all times, and under all circumstances.”
     Further, the Court questioned by what authority the military commission contemplated its judicial power to try US citizen civilians. The military commission was not established as an “inferior court” by Congress under the Constitution, nor did the President have the unilateral authority to make laws necessary to grant such an extension of military jurisdiction.
     Moreover, the Court rejected the contention that such military jurisdiction arose because the plaintiff’s acts violated the “laws and usages of war.”
     ANALYSIS OF THE CASE
     First, the Court noted that no such ‘laws and usages’ could be applied to citizens, who were unconnected to military service and residing in a state that sat unopposed to the United States government. Particularly striking, the Court noted, was the fact that the Indiana Federal Circuit Court and criminal justice system in general were working fine, with laws in place to apprehend, detain, and try the plaintiff, and not in a state of emergency whereby “bayonets [were needed] to protect it.” Because, presumably, if a state of emergency existed and public safety demanded it, a limited suspension of writs of habeas corpus could be authorized under President Lincoln’s Order and Congress’s affirmation of that executive Order in its 1863 Habeas Corpus Act. While the Court made it clear that in some circumstances the Great Writ may be suspended in times of great crisis and imminent threats to the peril of the government, the Court does qualify this assertion by stating, “The Constitution goes no further.” That is, nowhere is it inferred that the Writ can be abolished terminally, or that even after it’s originally denied, that the citizen in custody should be tried by some alternate method, other than the normal course of common law. If the plaintiff here had been originally denied habeas for such public safety reasons, then appropriately presented to a district court grand jury for civilian proceedings at the end of that limited suspension, the Court reasoned that “the Constitution would have been vindicated, the law 1863 enforced, and the securities for personal liberty preserved and defended.
     However, the government countered that the limited habeas suspension did not apply to the plaintiff because he was a prisoner of war. The Court rejected this view also; noting, in part, that if the plaintiff cannot plead the rights (and certain immunities) of POWs because he was not a person captured while engaged in hostilities against the government, nor connected to military service, then it cannot follow that he’s also subject to the same pains and punishments of POWs.
     In a concurring opinion by the Chief Justice, agreeing with the decision but urging that Congress does have the power, though unexercised, to “authorize [such] Military Commission[s]… used in Indiana.” “We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.” “Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war… it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety…”

Ex parte Quirin, 317 US 1, US Supreme Court, 1942

     FACTS IN THE CASE
     During WWII, after an official Congressional declaration of war between the US and Germany, eight German saboteurs were apprehended as they landed on US beaches via German subs and wearing, but later disrobing, their German infantry uniforms, they conspired to detonate a supply of explosives within the United States. One of the saboteurs, Herbert Hans Haupt carried both dual citizenship in the US and Germany.
After their arrests, President Roosevelt issued an Executive Order proclaiming the establishment of military commissions to try enemy nationals and those who acted for sabotage or espionage, or other “violations of the law of war.” Proclamation 2561, 7 Fed. Reg. 5101 (1942). The Order also attempted to suspend writs of habeas corpus, stating, in part, that “[defendants] shall not be privileged to seek any remedy… brought on their behalf, in the courts of the United States.
     Interestingly, the same “shall-not-be-privileged” language was used in President Bush’s Military Detention Order (mentioned above), although he and now Attorney General, Alberto Gonzales, both contend the suspension of habeas and the “shall-not-be-privileged” provision was not meant to apply to persons “substantially connected to the United States” (Dycus et. al 2002).
     Because of lower court refusals to hear petitions for writs of habeas corpus on behalf of the German detainees, the Supreme Court stepped in to hear the petitions. The Court ruled that while Roosevelt’s Order could not suspend the writs of habeas, the Justices agreed that habeas was available only to test the legal authority for trial by a military commission, and not to question the correctness of a commission’s decision. (see also the case of Yamashita 327 U.S. 1 1946) Subsequently, the Court held that the military commission was lawful in its authorization to try the saboteurs and denied the habeas petitions; six of the eight were executed eight days after the Court’s decision.
     ISSUES IN THE CASE
     Was Roosevelt’s Order, establishing and trying petitioners before a military commission, a valid exercise of his Commander-in-Chief Powers in a time of war and of grave public danger?
     REASONING
     Setting up the Court’s discussion was a review of the national security powers vested within each branch of government under the Constitution. “The Constitution invests the President… with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war… and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war.” Of course, the next step was for the Court to examine what laws were at the President’s disposal during such a conflict.
      A main focal point of the Court, among others, was Article 15 of the Articles of War (now found primarily within Article 21 of the UCMJ or 10 U.S.C. § 821); which the Court noted had “explicitly provided… that military tribunals shall have jurisdiction to try offenders and offenses against the law of war in appropriate cases…” Finding that the laws of war had been violated (unlike Milligan) and that the President was acting specifically pursuant an explicit Congressional grant of authority, the Court reasoned that the Constitution, in such a circumstance, does not require trial by a jury.
      ANALYSIS OF THE CASE
      It’s important to note that the decision by the Court was fact-sensitive and the specific facts present were a determining factor; therefore, the Court was not attempting to “define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.” Even still, its characterizations of unlawful combatants during a time of war, and the distinctions drawn with the Milligan case are instructive.
      The Court distinguished between “lawful combatants” and “unlawful combatants.” Lawful combatants can be thought of as an opposing military force, uniformed, and fighting distinctly on behalf of the enemy. They are, of course, subject to capture and detention, but also enjoy certain prisoners-of-war privileges. Conversely, unlawful combatants, while also subject to capture and detainment, are additionally subject to trial and punishment by military tribunals, and are not entitled to prisoner-of-war status. The Court analogized that both a spy or an enemy combatant, who secretly crosses military lines, without uniform, in a time of war for the purpose of waging war or destruction are classic examples of those deemed “unlawful combatants”; those in violation of the laws of war, and those subject to trial and punishment by military commissions. The Court found the petitioners at bar securely within the boundaries of that latter category.
     Further, and importantly, facing a clear ‘law of war’ violation, the Court concluded that US citizenship would not relieve an enemy combatant “from the consequences of a belligerency that is unlawful because in violation of the law of war”; subsequently, Haupt’s constitutional claims, based upon his citizenship, demanding his rights to a jury trial were to no avail.
     Finally, the petitioner’s relied upon some of the broad language used in Milligan to support his claim, but as the Court quickly pointed out, the determining factors that led to the inapplicability of the ‘laws of war’ to Milligan were fact-specific to the circumstances: in part, (1) Milligan was a resident of a non-hostile state, (2) he was not associated directly with the armed forces of the enemy, (3) he was not actively belligerent. The facts and circumstances at bar, however, were markedly different; and thus, the Court concluded a different result – “We hold only that [the particular acts of petitioners at bar] constitute an offense against the law of war which the Constitution authorizes to be tried by military commission…”

Effectively, Milligan found that a US citizen, detained inside the US, acting outside the war zone, and not actively belligerent, could not be tried before a military tribunal while civilian courts were available and running. In contrast, Quirin distinguished Milligan and set out not to overrule it; effectively finding that the saboteurs at bar, under an official declaration of war, while admittedly nationals of the enemy and actively operating as belligerents for the enemy (even wearing German uniforms as they hit US beaches) were within the laws of war, including the congressionally enacted Articles of War.

As you think about these cases (and others), it’s important to recall military necessity in times of war, and the importance it plays in making narrow exceptions to the preferred method of the civilian court system under Article III. That is, an action that aids the war effort may be distinguishable from actions that are necessary to military operations. Of course, the latter is given greater latitude (Judge Torruella). Also, if you recall, military necessity could not justify the Steel Seizures cases, nor Milligan as aids to the military effort. Additionally, are the above cases helpful in determining whether statutory authority is necessary before the Commander-in-Chief may establish military tribunals? Opinions differ based upon your particular interpretations of the decisions, but suffice to say, many experts agree that the President indeed carries implicit common law war powers to detain enemy combatants once a war is declared or once a quasi-war is thrust upon the United States. However, the more delicate question becomes for how long, to what extent, and whether he carries the authority, absent congressional authorization, to set specific standards for the adjudication and punishment of those in violation of the laws of war. Both Milligan and Quirin worked off some express grant of congressional authority; the former finding such a grant inadequate to justify tribunals, and the latter finding it expressly sufficient given the circumstances. Irregardless of whether you take a position that statutory authority is required or that it’s unnecessary once a war begins, Congress may still step in and regulate such military commissions (given, in part, its constitutional authority to define offenses) as long as such regulations do not unduly interfere with the Commander-in-Chief’s tactical command authority to conduct the war. Dycus et. al. (2002) provide the example that a statute requiring military tribunals to be held on a battlefield during combat would surely impede upon such tactical command authority.

Of course, many of these issues, and others, are being re-examined in recent jurisprudence, and there has been more recent caselaw (see below). It is important to examine rulings in relation to the distinctions drawn from previous caselaw, and to examine reliance upon the precedents and ideas set in prior discussions. As a means of summarizing those prior ideas, it may be helpful to think of the basic landscape of the US political community as twofold: based on citizenship and territory. That is, “the case for full U.S. constitutional protection is strongest when dealing with U.S. citizens on the territory of the United States, while the weakest case is a non-U.S. citizen on foreign territory.” (Anderson 2002). The question to ask is whether this framework plays out to expectations within the following cases?

Hamdi v. Rumsfeld, 542 U.S. 507, Supreme Court 2004

     FACTS IN THE CASE
     The Defendant in this case, an American citizen, was captured in Afghanistan, assault rifle in hand, while taking up arms against the United States at a time when the Taliban was engaged with US forces and her allies. The detainee, after capture, was declared an “enemy combatant”, and confined to a Navy brig in Norfolk, Virginia. And based upon his “enemy combatant” classification, he was held without charges, without any findings by a military tribunal, and without access to a lawyer.
     Summarily, after the defendant’s father (as next-friend) filed a habeas petition challenging the lawfulness of his son’s detention (specifically, that it was in violation of the 5th and 14th Amendments — no access to counsel or the opportunity to contest his detention), the District Court and Court of Appeals for the Fourth Circuit disagreed over whether the limited evidence proffered by Michael Hobbs (Under Secretary for Defense Policy) on behalf of the government was sufficient to hold the defendant in such a manner as an “enemy combatant.” The Court of Appeals eventually sided with the government; holding, in part, that an extensive judicial review was unwarranted since the defendant was captured in the zone of active combat, and further his detention was legally authorized, entitling him to no further opportunity to challenge his “enemy combatant” status.
     That decision was vacated and remanded by the Supreme Court; holding “that although Congress authorized the detention of combatants in the narrow circumstances alleged [at bar], due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to thoroughly contest the [full] factual basis for that detention before a neutral decisionmaker.” As Justice O'Connor opined, ""A state of war is not a blank check for the President."
     ISSUES IN THE CASE (in part)
     (1) Are the detentions of citizens as “enemy combatants” a constitutional exercise of power?
     (2) What, if any, are the due process requirements for such detentions?
     REASONING
     First, the Court did not have to consider whether the detentions of enemy combatants was a valid exercise of executive power specifically; since the Court, in effect, agreed with the government that such detentions were authorized pursuant the “Authorization for Use of Military Force (AUMF).” Since the President (under this grant of authority) was empowered “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”, the Court (in a plurality decision) held that such detentions were a valid exercise of that authority – even though, such detentions are not specifically addressed with the AUMF itself.
      Further, the Court was not persuaded by the petitioner’s argument that the Non-Detention Act (see 18 USC § 4001(a)) barred his imprisonment or detention (as a citizen) “except pursuant to an Act of Congress”, presumably an express act of Congress. Rather, the Court reasoned that “the AUMF satisfied § 4001(a)’s requirement that a detention be “pursuant to an Act of Congress.”
     Additionally, the Court relied upon Quirin, stating that, “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” Citizenship, therefore, is not a determining factor… as is the determination of the nature and circumstance of a citizen’s hostilities towards the United States, and the potential threat he or she poses to the ongoing conflict if released.
     Secondly, absent a congressional suspension of the habeas corpus, citizens are entitled to challenge the factual basis for detention; and that such detentions, if valid upon review, should not be indefinite – holding to the principles found within international law that the detention of prisoners shall extend only to the end of the active conflict. While the nature of the war on terror may present problems as to the exact end of active hostilities, the Court concluded that this issue was not present at bar, since operations in Afghanistan were still ongoing.
     Lastly, in determining what due process requirements adhere in circumstances such as this, the Court reasoned that a balancing approach should be used – that is, balancing the private citizen’s liberty interests with the government’s security interests in waging war and not having a combatant return to battlefield against the United States. The liberalizing of typical procedural standards may apply however, as the Court noted that “enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” Therefore, evidence otherwise inadmissible in a standard criminal trial may be used to detain the combatant. Importantly, the Court further suggested that military tribunals could meet the procedural standards they envision – “There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.”
     ANALYSIS OF THE CASE
     After review of Hamdi, perhaps it’s not necessary to fully visit Rumsfeld v. Padilla (2004) since both fact patterns and substantive issues are similar – that is, both involved US citizens, both were labeled “enemy combatants”, and both were held without formal charges or formal legal proceedings. However, Padilla was apprehended on US soil, presumably outside the war zone, for conspiring with al Qaeda to commit acts against the United States. Both Supreme Court decisions in Hamdi and Padilla were issued jointly on the same day; however, Padilla did not reach the full merits of its habeas claim challenging the detention of citizens captured at home. Rather, the case was reversed on jurisdictional grounds; perhaps suggesting, in light of the Hamdi decision, that the political branches should be allotted, first, the opportunity to resolve the issues and conflicts set-forth in Hamdi.

The detention of enemy aliens held awaiting trial before military tribunals has also been challenged before the American court system. Consider the Court of Appeals, DC Circuit ruling in July of 2005 below, an interesting case heard and ruled upon, in part, by John Roberts, the Bush replacement for Chief Justice Rehnquist.

Hamdan v. Rumsfeld, 2005 WL 1653046, July 15, 2005

     FACTS IN THE CASE
     Hamdan was captured in Afghanistan in November of 2001. He was turned over to the US military, which held him initially in detention at Guantanamo Bay. Following a determination that he was an enemy combatant pursuant the President’s Military Order dated November 13, 2001, Hamdan was set for trial before a military commission. In 2004, he filed a petition for habeas corpus. While awaiting the hearing of his petition, the US government “formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism.” The charges stemmed from Hamdan’s admittance that he was Osama bin Laden’s personal driver, and allegations that he served as a body guard, delivered weapons, drove bin Laden to training camps and safe havens, and trained for terrorist activity at Al Qaeda-sponsored camps.
     Hamdan’s characterization as an “enemy combatant” was affirmed before a Combatant Status Review Board, which now consists of three officers, all the rank of colonel. The Tribunal affirmed his status, either as “a member of or affiliated with al Qaeda,” effectively securing his detention.
     A District Court, on November 8, 2004, granted Hamdan’s petition in part, holding that he could not be tried before a military tribunal unless it was determined that he was not a prisoner-of-war under the Geneva Convention III; which, in effect, prevented the US from conducting an further military proceedings against Hamdan. The government appealed, and the Court of Appeals for the DC Circuit in Hamdan v. Rumsfeld (pdf) reversed that lower court decision [but see Brief of Amicus Curiae (pdf) filed by Human Rights First March 8, 2005].
     ISSUES IN THE CASE (in part)
     (1) Hamdan claims, that under the separation-of-powers doctrine, that the President has no authority to establish military commissions to try him, only Congress possesses this authority pursuant Article I, §8.
     (2) Even if the provisions of Geneva Convention III were judicially enforceable creating private causes of action in a federal court (which this Court ultimately says they do not, relying, in part, on the Restatement 3rd of Foreign Relations Law §907), is Hamdan even entitled to protection under Geneva as a prisoner-of-war?
     REASONING
     As to issue one, although the Court acknowledged Hamdan was entitled to assert such a constitutional claim, the Court found little merit to his argument given the President’s Military Order and its authority pursuant Congress’s Joint Resolution (authorizing the use of force), the Commander-in-Chief powers under Article II, §2, and two statutes specifically authorizing the use of the military commissions that will try Hamdan.
     Whether the use of a military tribunal can be fit within the “use of force” declaration authorized by Congress, the Court specifically relied upon In re Yamashita (327 U.S. 1 (1946)); which in effect held that “The trial and punishment of enemy combatants… is part of the conduct of war.” (internal quotes omitted) – calling such disciplinary measures an “important incident” to the war effort itself. Therefore, the establishment of a military tribunal was incident to and within the parameters set by Congress’s authorization “to use all necessary and appropriate force…” The point was finally anchored upon the plurality decision discussed above in Hamdi; whereby the court suggested that such tribunals may be sufficient to determine whether an American citizens were enemy combatants in the current conflict; the Court found nothing here that should distinguish Hamdan.
     Additionally, the Court found value in Quirin. If you recall, Quirin held that the use of military commissions were sanctioned under Article 15 of the Article of War; similarly, the President today invoked two congressional statutes, 10 USC §821 and 10 USC S836(a), both concerning the “concurrent” jurisdiction of and procedures within military commissions with respect to offenses against the laws of war. The Court did not find it a determining factor that in Quirin, Congress had officially declared a state of war, while the present conflict sits without an official declaration – a position we have alluded to throughout this course – that is, an official declaration is not necessary in light of the attacks on American soil and the breadth of Congress’s Joint Resolution for the Use of Force. “The joint resolution went as far toward a declaration of war as it might, and as far or further than Congress went in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the Gulf War, and numerous other conflicts.” (Bickers 2003).
     As to the second issue, the Court held that Hamdan did not qualify as a prison-of-war under Geneva III). He was not a member of group that distinguished themselves under a recognizable symbol (like a uniform or some other distinction); nor was he a person who conducted or was associated with a group that operated in accordance with the laws and customs of war; both requirements under Geneva. Further, Hamdan and al-Qaeda are not “High Contracting Parties” or states a party to the Geneva Conventions; and thus are not bound nor entitled to its protections.
      Even if Geneva were to apply under the exception listed in Common Article 2, that the “signatory” nations (presumably the US here) are bound irrespective of whether the enemy is a signee, that exception only applies “so long as the Opposing Power accepts and applies the provisions thereof.” No one, and certainly of course not this Court, would contend that al Queda accepts and applies faithfully the provisions of the Geneva Convention.
     ANALYSIS OF THE CASE
     While the Court goes on to argue in arguendo rejecting Hamdan’s position that Common Article 3 of Geneva applies (“armed conflict not of an international character occurring in the territory of one of the High Contracting Parties ....;” Afghanistan being a contracting party, the conflict confined to that single country, and Hamdan being captured there), the Court ultimately deferred to with the President’s determination that our conflict with the Taliban in Afghanistan is distinct from our conflict with al-Queda. Noting, in part, that our conflict with al Qaeda is “international in scope” (therefore inconsistent with Article 3) and began prior to the US engagement in Afghanistan (presumably, the day al Qaeda attacked the US on September 11, 2001), the Court affords the President his constitutional deference to make this “sort of political-military decision constitutionally committed to him;” drawing, of course, upon his independent authority to act in the areas of foreign affairs (see Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414, (2003) or recall our previous discussion of Curtis-Wright Export Corp).

While we did not fully examine each issue and argument set-forth in Hamdan, the above brief (and the others) should give you some insight into conflicts between the government’s position and those who disagree with the government's position. Thankfully, Hamdan appears to get “things” moving along. It establishes that: (1) a war is ongoing; (2) trials by military tribunals are appropriate in these circumstances; (3) al-Qaeda is unprotected under Geneva III; and (4) terrorist criminals may initially challenge their combatant status; all positions presumably agreeable to the government. Additionally, and important to civil libertarians, the Court also does not seem to foreclose the possibility that determinations made by military commissions are subject to review. The current mood appears to be, at this point, in favor of just letting letting the military commissions do their work, with whatever flaws they may possess (a situation preferable to just letting detainees sit around for years). Once the commissions render a judgment, the civilian judiciary will most likely have an opportunity for review. However, not all legal experts agree to let Hamdan stand. For example, Hamdan’s attorney and groups like Human Rights First do not appear ready to concede, and regard the rulings as too sweeping; asserting also that the President now “has the power to decide how a detainee is classified, how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out.” Concerns tend to center around the issues of delay and uncertainty in the use of military tribunals, as well as the fact that military commissions are currently designed to draw heavily from defendant and other detainee statements obtained by such interrogation methods (alleged to be common in Guantanomo and elsewhere) as sexual humiliation, prolonged solitary confinement, temperature and noise extremes, sleep deprivation, and prolonged painful stress positions. Hamdan's case is petitioned before the Supreme Court for review in August, 2005. At present, what stands is the U.S. Court of Appeals ruling in Hamdan v. Rumsfeld (pdf) which effectively gives a green light to military tribunals.

In the case of Boumediene et al. v. Bush (2008), a deeply divided Supreme Court (5-4) ruled that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges. Justice Kennedy said, “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Kennedy recognized the terroristic threats the U.S. faces and understood the justifications for the detentions but said he has to side with what the framers wanted. Justice Scalia said, "this decision will make the war harder on us. It will almost certainly cause more Americans to be killed." Justice Scalia cited a report by Senate Republicans which said at least 30 prisoners have returned to the battlefield following their release from Guantanamo. Some 400+ detainees have been released so far, and the remainder (about 300) fall into three categories: (1) those who are to be tried on criminal charges; (2) those who could be transferred or repatriated to their home country, safety permitting; and (3) those whom the Bush administration says it won't release even though they won't face charges. The first group is unlikely to ever receive convictions since their lawyers will raise all sorts of legal defenses, up to and including unfitness to stand trial because of all those years of detention. The second group involves detainees such as the Uighurs -- members of a Turkic population in western China -- who say they will be tortured if they are returned to their home countries -- who will most likely have to go into some sort of witness protection program and be repatriated as US citizens. The third group, which is mostly retained for their intelligence value, could be looking at a timely release depending on their security threat level, but are indeed the source of much executive-judicial branch conflict on this issue. In any event, as of mid-2008, the Military Commissions Act of 2006 which denies Guantanamo detainees the right to habeas corpus has been struck town. What remains to be seen is whether the law is moving in a direction where unlawful combatants (i.e., terrorists) end up with more rights than prisoners of war (i.e., soldiers).

The Bin Laden case is instructive to how US domestic statutes can apply to activities outside the territorial limits of the US. Additionally, it sets the stage for a discussion over constitutional rights versus national security interests as well as many other issues. It is reviewed below and is perhaps the most important case covered in this lecture:

    The case of US v. Bin Laden (92 F. Supp. 2d 189, US Dist. Ct. NY, 2000) is a multifaceted case that presents several issues relevant to our considerations – namely, affirming that a certain national security exception applies to the 4th Amendment search and seizures guarantees otherwise unconstitutional; and that US Federal Law carries, in certain circumstances, extraterritorial applications (that is, application outside the United States). The former issue will be explored later in a lecture on civil rights and national security, while the latter will be examined briefly here.

    In the Bin Laden case, fifteen defendants (mostly foreign nationals) were indicted on federal charges ranging from conspiracy to murder US citizens, to the use of weapons of mass destruction, to the conspiracy to destroy US buildings and property. In addition, the indictment also included 223 counts of murder for certain defendants, stemming from, in part, the US Embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania.

    Since the defendants resided and acted outside the US, the defendants challenged, in part, the US authority, both under the Constitution and under international law, to apply US federal criminal statutes abroad. Essentially, the defendants contended that “the statutes that form the basis of the indictment fail clearly… to regulate the conduct of foreign nationals for conduct outside the territorial boundaries of the United States."

    The Court, however, did not agree with this blanket assertion. Summarily, the Court acknowledged that it is a well-established principle that Congress has the power, both constitutionally and within certain parameters of international law, to regulate conduct outside the United States – as long as, in part, any enacted federal statutes do the following:

    1. Exhibit a “clear manifestation” that they were meant to apply beyond the confines of only local or domestic activity; note, this is not meant to suggest that Congress, through the statute, is required to expressly provide for extraterritorial application – as such intent may be inferred by the court by looking at the purpose of the statute and the “nature of the offense” it guards against; and whether the statute(s)…

    2. Fall within one of the five jurisdictional principles recognized by international law that allow for States to exercise its reach into conduct otherwise beyond their borders; those principles being:

        (i) The Objective Territorial Principle -- providing a state has jurisdiction to enforce laws with respect to “conduct outside its territory that has or is intended to have substantial effects within its territory”
        (ii) The Protective Principle -- providing a state has jurisdiction to enforce laws with respect to “certain conduct outside its territory by persons not its nationals that is directed against the security of the state"
        (iii) The Nationality Principle -- providing a state has jurisdiction to enforce laws with respect to “the activities, interests, status, or relations of its nationals outside as well as within its territory”
        (iv) The Passive Personality Principle -- “a state may apply law – particularly criminal law – to an act committed outside its territory by a person not its national where the victim of the act was its national.”
        (v) The Universality Principle -- “a state has jurisdiction to define and prescribe punishment for certain offenses recognized by the international community as of universal concern, such as piracy, slave trade, hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.”

    It should also be remembered that even though courts will read statutes to avoid conflicts with international law, if Congress so chooses, they may override international law. So, although this Court (in the bin Laden case), when given a statute that applies extraterritorially, pauses to note whether it is consistent with one or more of five principles, the Court is not saying consistency is demanded, or that the principles expressly limit the powers of Congress.

    In light of these parameters, then, the Court found the federal statutes included in the defendants’ indictment consistent with both the above established international principles and in harmony with the congressional intent underlying the creation of the statutes. Therefore, the Court concluded that the statutory provisions at issue were meant to reach foreign nationals on foreign soil.

    In conclusion, it may be noted that the Framers of the US Constitution apparently contemplated the power to apply laws outside the territorial limits of the United States (Dycus et al. 2002). Such intent is clearly expressed in Article III, § 2, clause 3, stating that when a crime is not committed within any State, trial shall be conducted where Congress directs. Additionally, such constitutional powers are found within Article I, §8, clause 10; where express constitutional authority is granted to define and punish offenses against the laws of nations.

PRINTED RESOURCES
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Anderson, K. (2002). "A qualified defense of military commissions." 25 Harvard journal of law & public policy 2.
Bassiouni, M. (2007). International extradition, 5e. NY: Oxford Univ. Press.
Bickers, J. (2003). "Military commissions are constitutionally sound." 34 Texas Tech law review 899.
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Combs, C. (1997). Terrorism in the 21st century. NJ: Prentice Hall.
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Fitzduff, M. & Stout, C. (Eds.) (2005). The psychology of resolving global conflicts. Westport, CT: Praeger Security International.
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Garner, B. (2003). Black's law dictionary. St. Paul: West.
Hoffman, B. (1999). Inside terrorism. NY: Columbia Univ. Press. (see sample chapter)
Hudson, R. (2002). Who becomes a terrorist and why: The 1999 government report on profiling terrorists. Guilford, CT: Lyons Press.
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McCormack, W. (2007). Understanding the Law of Terrorism. Newark, NJ: LexisNexis Matthew Bender.
Moore, J. & Turner, R. (2005). National security law, 2e. Durham, NC: Carolina Academic Press.
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Netanyahu, B & B. (1997). Fighting terrorism. Jerusalem: Noonday Press.
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Last updated: Nov. 15, 2009
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