Amicus Curiae Brief — Hamdan v. Rumsfeld
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FILED
a> zi
JAN 5 ~ 28%
No. 05-184 OFFICE OF THE CLERK
Eee ee S aE PRCT
IN THE
SUPREME COURT OF THE UNITED STATES
SALIM AHMED HAMDAN,
Petitioner,
V.
DONALD H. RUMSFELD,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Brief of Amici Curiae International Law Professors
Listed Herein in Support of Petitioner 4
(Commissions -- Geographic Requirement)
Jordan J. Paust Linda A. Malone
University of Houston Counsel of Record
Law Center College of William and Mary
100 Law Center 613 S. Henry Street,
Houston, TX 77204 Suite NW 240
(713) 743-2177 Wilhamsburg, VA 23185
(757) 221-3844
TABLE OF CONTENTS
Page
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SUIRERGARY GP ARISUBGIINGT onccccececccceccccsccscssnsesscesnscsccressescomecsenes 2
SIT ‘ichschriiteioncheinnctiiaciaiichtcinaancecacslaniainieapiaeniaiianlapaniiseisciibiie 3
1. Limits on Presidential Power to Create a Military
Commission and Lack of Jurisdictional Competence .......... 3
A. Limitations with Respect to Place................::0::s0e 3
B. Limitations with Respect to Time ...............:000s000 7
Il. The Geneva Convention Provisions, Including ~ Those
Requiring a Regularly Constituted Court, Are Partly Self-
Executing and Have Jurisdictional Requirements................ 9
Ul. A Violation of the Separation of Powers .......................:0++ 17
STF EL EI LE AIT ICE BIT Fd ORE RE ANIA OTRO 18
—ij—
TABLE OF AUTHORITIES
Page(s)
UNITED STATES CASES
Baldwin v. Franks, 120 U.S. 678, 683 (1887) .........::cscseseeeee 9
Coleman v. Tennessee, 97 U.S. 509, 515 (1878) ...........ccccceeee 3
Cook v. United States, 288 U.S. 102 (1933)...........::cccceceeeeeeeees 8
Cross v. Harrison, 57 U.S. (16 How.) (1853) ..........cccceecceeeeeees 7
Dooley v. United States, 182 U.S. 222 (1901) .... eee eeeceeeeeeee 8
Duncan v. Kahanamoku, 327 U.S. 304 (1946) .0......:cccsseceeeeeee 2
Edye v. Robertson, 112 U.S. 580 (1884)... eceeeeesseeeeeeeeee 9
Ex parte Quirin, 317 U.S. 1 (1942) ....ccececcceeeeeeeeeeeeee passim
Ford v. Surget, 97 U.S. 594 (1878) .......ccccccseseeeeseeeees 10, 11, 19
Francis v. Francis, 203 U.S. 233 (1906)............cccceeceesee cones 10
Freeland v. Williams, 131 U.S. 405 (1889)...........::ccecceseeeeees 11
Hamdan v. Rumsfeld,
344 F.Supp.2d 152 (D.D.C. 2004) oo... ceeceeeteeeeeees passim
Hilao v. Estate of Marcos, 103 F.3d 767 (9"" Cir. 1996)........11
In re Guantanamo Detainee Cases,
35S F. Sapp.26 443 (D.D.C. BOOS) ...ccccsssoccccsesscesseessecescvcvceseses 9
In re Yamashita, 327 U.S. 1 (1946)..........cceccceeceeeeeeeeeeeees passim
Johnson v. Eisentrager 339 U.S. 763 (1950) .........cccceceeeeeeeees 12
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)................ 11,14
Linder v. Portocarrero, 963 F.3d 332 (11" Cir. 1992)....11, 14
Madsen v. Kinsella, 343 U.S. 341 (1952) ......eeeee 2, 6, 8,9
Mitchell v. Harmony, 54 U.S. (13 How.) 115, 137 (1851).....11
Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344 (1809) ..9
Presbyterian Church of Sudan v. Talisman Energy, Inc., 244
Ps te Es © « BD cstcsnesieicsincinntctsmneviemieminmnns 11
Rasul v. Bush, 124 S.Ct. 2686 (2004) .0.....cccccceeeeeeeeteeeeeees 3,17
Reid v. Covert, 354 U.S. 1 (1957) ........sccccssscssssesereessneceseeeees 5
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) 0... eee 11
Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801)... 8
The Charming Betsy, 6 U.S. (6 Cranch) 64 (1804) ..............0.. 8
The Grapeshot, 76 U.S. 129 (1869) ......ccccceecceeeeeeeeseeeeeees 2,7
The Lessee of Pollard’s Heirs v. Kibbee, 39 U.S. (14 Pet.)
I TTIIID Lainie diatcsaretiebiibeneneniaeiaiaiciainsabilaiiacennaltinint 10
The Paquete Habana,.175 U.S. 677 (1900) ..........:ccccseceeeeeees 11
United States v. Flores, 289 U.S. 137 (1933) .......ccccececcceeeeeeees 8
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)
EERE ESRF RARRES RE: env oe BnnON eS oe To 11
INTERNATIONAL CASES AND OPINIONS
Abella v. Argentina, Case 11,137, Inter-Am. C.H.R..,
GAELS S77, BBG. SB CGI) vccecncenssescsecevccevecscccvevescoccsceves 13
Nicaragua v. United States, 1986 I.C.J. paras. 218, 255....1, 13
Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, 1996 1.C.J. paras. 81-82 ........cceccceccseeeees 10
The Prosecutor v. Delalic, IT-96-21-A, Judgment (ICTY 20
Pts a EITTaIihicuiteisdelealedeladaeelacecsibccanbenenapsepduiiahanstbenianatninnianietin 5,13
The Prosecutor v. Tadic, IT-94-1-AR72
I aa ioeelsdamiiicanlilae 13
The Prosecutor v. Tadic, (Trial Chamber, ICTY 10 Aug.
-iv-
CONSTITUTIONAL PROVISIONS
U.S. Const, art. I, § 8 C1. 9 v.ccscscecssecesssseesesucssssuesessece 2, 3, 17, 18
ite. S| | enamnmmO ne 10
TREATIES
Geneva Convention Relative to the Protection of Civilian
Persons in Time of War August 12, 1949, 75 U.N.T.S. 287
UST. S506, TEAR. BOD. TaD ectesscesweneuiennniaeniinniin 4,5, 10
arts. 7-8, 27, 38, 43, 48, 72-73, 75-76, 78, 80, 101 ..........ceeeeee 9
BRI. .cccevencocevenceconsecesevenessonseiensesieueuedesivensennsitiniasaliibeiiteniiansiiiianiiiiiiel 5
BIE. BD covenreccceceeonnevessescnsnsesennonstoseissebeomasdonnegtinensaianneniaannnnann 5, 16
GBB. 4....cresvcerceceesvesessecssenseveenesncsunanenventannussnninieansiniinaneniininannnl 6
GR, F ccccecescececsecesenementveeneesesensevmnenieneniensinnmnadanammaaa 5
GAB. ED, 8G, BFF -cecreversssessoressevossssenssnemensensmnmmenaniananaaal 5
GR, 07 xereveceesssneesnesenessnserrssenmsernenennennnininmail 5
BR, ID ccneereesesesersvenseemeevenenmnnemmenninsinnaiiialtl 4,5
GUE. FB cvcrsesnsecsesreerseniinenentmniinnniduniiinimminiiaiiaaa 4, 10, 13
OR, BOT caeeecceseesensessseniecnenennesonenentnnontenionninnciinimsseimnmiiiedaieninnialae 6
Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of
International Armed Conflicts, June 8, 1977)................ 5, 6, 13
GD, Fie wccacccctnsevituvithiinninzedsinaiaiiiiasiniaaee 13, 16
GR, Fi ccccccucsscecasticecsensencsiesebecsssiesatencicasunmasmicuaasiiainaasaannnnnn 5
-V—
UNITED STATES STATUTES
SEIT Sc Rae SEE 9
Uniform Code of Military Justice ...........::cccccccceeeeeeenneee passim
rel aidiiceinene dapermienidnbnonaienniniaes 4,9, 21
alti ial daccaiaaldaraiddeitteinecisaiialinensapicamemniinn 4,9,17
OPINIONS OF U.S. ATTORNEYS GENERAL
1 Op. Att’y Gen. 566 (1822) ...ccscccescsessscssssecsssesseseesessseecsssvees 10
9 Op. Att’y Gem. 356 (1859) ....cccccccccccesssssssvesesssssssesesssseeseseeeee 9
11 Op. Att’y Gen. 297 (1865) ..ccccccccssccsssssssseseessesesseeeen 7, 8, 10
24 Op. Atty Gem. 570 (1903) ..cccceccccssescsssssesssessssecsssssvessenecsee 7
TREATY-RELATED DOCUMENTS, DECISIONS,AND REPORTS
Military Order of Nov. 13, 2001, § 4(A), 66 Fed. Reg. 57,833
EEE a ee 8, 12
Report of the Secretary-General Pursuant to Paragraph 2 of
the Security Council Resolution 808 (1993), U.N. Doc.
a — 10
U.N.S.C. Res. 1438, U.N. SCOR, 58" Sess., 4761th
mtg.pmbl., U.N. Doc. S/RES/1483 (2003)......c:cccccscessesseseeseeees 6
U.S. Dep’t Defense, Military Commission Order No. 1, Mar.
EE DEE RES A ae 15,17
MISCELLANEOUS MATERIALS
IV Commentary, Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (ICRC, Jean
EASES ET ee 5,6, 9,12
~vi-
III Commentary, Geneva Convention Relative to the
Treatment of Prisoners of War 51 (ICRC, Jean S. Pictet ed.
FIFI U ED rcssinasiansiinecinesianinsinnsneieinneemmminniendiidtimnnmniail 5,9
Norman Abrams, Anti-Terrorism and Criminal Enforcement
SEI seenniccensetdaennpeninienadncnnssabiepanininedatinibeniniemlnapinianeinitiins 14
Annotated Supplement to Commander's Handbook on the
Law of Naval Operations (U.S. Naval War College, vol. 73,
Michal R. Belknap, A Putrid Pedigree: The Bush
Administration's Military Tribunals in Historical
Perspective, 38 Cal. W. L. Rev. 433 (2002) ..........::.ccceceeeeees 14
A. Christopher Bryant & Carl Tobias, Quirin Revisited, 2003
IIs Siies NOG: SUE OEE ensccsseniitnctiniiseetssnsmitiinititenineireaeiinaiiiitnsanpeneion 14
' Mark A. Drumbl, Victimhood in Our Neighborhood:
Terrorist Crime, Taliban Guilt, and the Asymmetries of the
International Legal Order, 81 N.C. L. Rev. 1 (2002)............ 14
2 Henry W. Halleck, /nternational Law 444
a a 8
Major General Henry W. Halleck, Military Tribunals and
Their Jurisdiction, 5 Am. J. Int’! L. 958 (1911), reprinted in
Mil. L. Rev. Bicentennial Issue 15 (1975) ...........:..csccccceeeeeeees 7
Alexander Hamilton, The Federalist No. 78 (1788) .............. 15
Jean-Marie Henckaerts & Louise Doswald-Beck, Customary
International Humanitarian Law vol. I: Rules 299 (ICRC
ae ineciceniesiinsenciieabpinunasanapisasiteiildineaiiniiinaphiadadaseiialantdieinetaiaindiatid 13
Derek Jinks, Protective Parity and the Law of War, 79 Notre
I i Be ree nrtcinccscitntedteneiesaiinttanisnamnsiminidiiieneis 12
Harold Hongju Koh, The Case Against Military
Commissions, 96 AmJ. Int’! L. 337 (2002) ...0.0......ccccccceceeeee 14
‘ Justice Sandra Day O’Connor, Vindicating the Rule of Law:
The Role of the Judiciary, 2 Chinese J. Int’! L. 1 (2003)....... 15
—-vil-
Jordan J. Paust, Antiterrorism Military Commissions:
Courting Illegality, 23 Mich. J. Int’1 L. 1 (2001) ....3, 4, 12, 17
Jordan J. Paust, Antiterrorism Military Commissions: The Ad
Hoc DOD Rules of Procedure, 23 Mich. J. Int’) L. 677
ITEED ‘sctninseiiiatitansidanonatncnnisiaie sideeneiaibiiitiiaeatibaioadindbeiiei 14, 16
Jordan J. Paust, /nternational Law as Law of the United
I ee iticineninnnsriininnniaviinniiitaansteniticiain 8, 10,11, 12
Jordan J. Paust, /nternational Law Before the Supreme
Court: A Mixed Record of Recognition, 45 Santa Clara L.
hs a tessinstasisiinccntinspeinniicisenannitasiansivitenimanianbnnbiiiegn 9,10
Jordan J. Paust, Judicial Power to Determine the Status and
Rights of Persons Detained Without Trial, 44 Harv. Int’! L. J.
i cath ac i 9, 10, 12, 16, 17
Jordan J. Paust, Executive Plans and Authorizations to
Violate International Law Concerning Treatment and
Interrogation of Detainees, 43 Columbia J. Transnat’! L. 811
Se cnsinacadinnestciibidaldiidnesinniiniuitnnasniaipigthipiemnibiitiinembionins passim
Jordan J. Paust, The U.S. as Occupying Power Over Portions
of Iraq and Special Responsibilities Under the Laws of War
(May 2003), available at
http://www.nimj.org/documents/occupation(1).doc................. 6
Jordan J. Paust, War and Enemy Stutus After 9/11: Attackson
the Laws of War, 28 Yale J. Int’] L. 325 (2003)..............:ccccc0e 5
Jordan J. Paust, M. Cherif Bassiouni, et al., Jnternational
Criminal Law (2d ed. 2000) .............ccceccecseeeeeeeeeees 7,10, 12,14
James E. Pfander, Federal Courts: Jurisdiction Stripping and
the Supreme Court's Power to Supervise Inferior Tribunals,
ee ie Ee ee csnicinhueresnenenacitncninninenninisnabonesininine 17
Adam Roberts & Richard Guelff, Documents on the Laws of
RINSED Reap oepnenre teeny a ty Rts ae Bape na 10
—Vili-
Marco Sassoli, “Unlawful Combatants”: The Law and
Whether It Needs to Be Revised, 97 Proc., Am. Soc’y Int’! L.
IT <snsisssinctninsitnsiiimastiadaininiennnsitnnsesetinegsinanniaineeneeinneinnines 5
William H. Taft, IV, The Law of Armed Conflict After 9/11:
Some Salient Features, 28 Yale J. Int’! L. 319 (2003)............. 5
U.S. Dep’t of Army, Field Manual 27-10, The Law of Land
SI Be Ci crccnccttccnssscsescnnssnnttenninanetentactianigneinianstemanentis 5
U.S. Dep’t of Army, TJAG School, Operational Law
CI I centhncinenincitnnsnniencctsanisvineninnereuniniiainitantinnn 12, 16
U.S. Dep’t of Army, Pam. 27-161-2, II International Law
Fe CE cinicnncninnitenenciictanescesissensinenisonmnensinatesitiaentbiianniinnidiniiionn 6
William Winthrop, Military Law and Precedents 836 (2d ed.
Sri scsininceciilapiniiisielaenccainidseeiieiieanendieialianlinantinesasiabenhaiinedetiine 2,14
Detlev F. Vagts, Which Courts Should Try Persons Accused
of Terrorism?, 14 Eur. J. Int’] L. 313 (2003) .........:ccceeeeeeees 14
UK, The Manual of the Law of Armed Conflict
EET cvsccsanetanangttetiabenentaantiiteeninntinenmieniiadmamaiimiaticasiate 5, 6, 10
ale
INTEREST OF AMICI CURIAE
Amici Curiae, the international law professors named
below, include the Amici in Hamdan before the District of
Colombia Circuit Court and the district courts below, or
other professors who have lectured and/or published widely
on these and related matters.' This amicus memorandum sets
forth their considered views. We generally support the
recognitions in the District Court below and generally oppose
most of the conclusions of the Court of Appeals below.
However, we focus here on three main points, as explained in
the Summary of Argument. Amici sign this memorandum on
their own behalf and not as representatives of their respective
schools. The affiliations of amici are listed in the appendix.
SUMMARY OF ARGUMENT
There are three reasons why the military commissions are
unlawfully constituted and without jurisdiction even if a
detainee-accused is not a prisoner of war. First, military
commissions are “war courts” and their jurisdiction is limited
in terms of context and time to a circumstance of actual war,
and in terms of place to an actual theater of war or a war-
related occupied territory. Guantanamo, Cuba is neither in a
theater of war nor a war-related occupied territory and, thus,
a military commission situated there does not have lawful
jurisdiction. Second, Department of Defense (DOD) rules of
procedure and instructions for military commissions do not
comply with jurisdictionally-related requirements of
customary and treaty-based international law (which is the
‘Letters of consent to the filing of this brief accompany this brief. No
counsel] for a party authored this brief in whole or in part and no person,
other than Amici, their members, or their counsel, made a monetary
contribution to the preparation or submission of this brief.
efe
constitutionally-based supreme law of the United States
binding on the President and federal courts) that trial must be
in a regularly constituted, independent, impartial tribunal and
that there must be review by a competent, independent, and
impartial court of law.
Third, a serious violation of the separation of powers
exists because the military commissions at Guantanamo do
not comply with Article I, Section 8, clause 9 of the U.S.
Constitution, which requires that tribunals be constituted as
“inferior to the Supreme Court” and thus, subject to its
ultimate control. Thus, the commissions are not lawfully
constituted and lack jurisdiction.
ARGUMENT ~
I. Limits on Presidential Power to Create a Military
Commission and Lack of Jurisdictional Competence
A. Limitations With Respect to Place
The President’s power as Commander-in-Chief to set up
a military commission and its jurisdictional competence
apply only during an actual war (to which the laws of war
apply), and within a war zone (i.e., an actual theater of war)
or a war-related occupied territory. See, e.g., The Grapeshot,
76 U.S. 129, 132-33 (1869) (jurisdiction exists “wherever the
insurgent power was overthrown’); William Winthrop,
Military Law and Precedents 836 (2d. 1920); Jordan J. Paust,
Antiterrorism Military Commissions: Courting Illegality, 23
Mich. J. Int'l L. 1, 5 & n.14, 25 n.70, 26-27 (2001)
[hereinafter Paust, Military Commissions]; see also Madsen
v. Kinsella, 343 U.S. 341, 346-48 (1952) (military
commissions are “war courts,” “related to war,” and are
proper in a war-related occupied enemy territory “in time of
war”); Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946)
(jurisdiction exists in “occupied enemy territory”); id. at 326
allie
(Murphy, J., concurring) (jurisdiction exists “[o]nly when a
foreign invasion or civil war actually closes the courts”); Jn
re Yamashita, 327 U.S. 1, 11, 20 n.7 (1946) (a military
commission is a “war court” prosecuting the “law of war”
and in that instance was created by a military commander in
charge of the U.S. Army Forces, Western Pacific, theater of
war and war-related occupied territory “so long as a state of
war exists.” Id. at 9-12); Coleman v. Tennessee, 97 U.S. 509,
515 (1878) (“when ... in the enemy’s country”); id. at 517
(when occupation of enemy territory occurs). As Colonel
Winthrop recognized in his classic study of military law: “A
military commission ... can legally assume jurisdiction only
of offences committed within the field of command of the
convening commander,” and regarding military occupation,
“cannot take cognizance of an offence committed without
such territory.... The place must be the theater of war or a
place where military government or martial law may be
legally exercised; otherwise a military commission ... will
have no jurisdiction....” Winthrop, supra, at 836. Contrary
to the opinion of the Court of Appeals in this case, the
military commission set up within the United States during
World War II and recognized in Ex parte Quirin had been
created during war in what was then an actual theater of war
for prosecution of enemy belligerents for violations of the
laws of war that occurred within the United States (in Florida
and New York) and within the convening authority’s field of
military command — the Eastern Defense Command of the
United States Army. 317 U.S. 1, 22 n.i (1942).
What is unavoidably problematic with respect to military
commission jurisdiction at Guantanamo, Cuba is the fact that
the U.S. military base at Guantanamo is neither in an actual
theater of war nor in a war-related occupied territory. See,
e.g., Paust, Military Commissions, supra, at 25 n.70. See
also Rasul v. Bush, 124 S.Ct. 2686 (2004) (Kennedy, J.,
concurring) (correctly describing Guantanamo as territory
“far removed from any hostilities” and clearly not in an
—4-
actual theater of war). Consequently, a military commission
at Guantanamo is not properly constituted and is without
lawful jurisdiction. Also, alleged violations of the laws of
war by detainees during a war with the Taliban in
Afghanistan did not occur in Cuba or within the field of
command of the convening commander.
Further, the District Court properly recognized other
jurisdictional limits: (1) “[t}he President may establish
military commissions only for offenders or offenses triable
by military tribunal under the laws of war,” (2) “limits [are]
now set for military commissions” by Congress “by Article
21” of the U.C.M.J. (by 10 U.S.C. § 818, 821), and (3)
approval “does not extend past ‘offenders or offenses that by
statute or by the law of war may be tried by military
commissions.’” Hamdan v. Rumsfeld, 344 F.Supp.2d 152,
158-59 (D.D.C. 2004).
Another jurisdictional problem with respect to
prosecution of certain persons in a military commission at
Guantanamo involves an absolute prohibition under the laws
of war. Any person who is not a prisoner of war and who is
captured in occupied territory in Afghanistan cannot be
transferred out of occupied territory. The Geneva
Convention Relative to the Protection of Civilian Persons in
Time of War, Aug. 12, 1949, art. 49, 75 U.N.T.S. 287, 6
U.S.T. 2516 [hereinafter GC or Geneva Civilian
Convention]’ expressly mandates that “[iJndividual or mass
2The Geneva Conventions apply to the wars in Afghanistan and Iraq even
though the U.S. cannot be at “war” with al Qaeda as such. Importantly,
the District Court below was correct that a member of al Qaeda, like any
person in the war area, is covered under certain provisions of the Civilian
Convention if captured during war in Afghanistan or Iraq. See, eg.,
Hamdan, 344 F. Supp.2d at 160-64; Paust, Military Commissions, supra,
at 5-8 n.16; Jordan J. Paust, Executive Plans and Authorizations to
Violate International Law Concerning Treatment and Interrogation of
Detainees, 43 Columbia J. Transnat’l L. 811, 816-20, 829-30 (2005)
oie
forcible transfers ... of protected persons from occupied
territory ... are prohibited, regardless of their motive.” GC,
art. 49.) Further, “unlawful deportation or transfer” is not
{hereinafter Paust, Detainees]; Jordan J. Paust, War and Enemy Status
After 9/11: Attacks on the Laws of War, 28 Yale J. Int’! L. 325, 325-28
(2003).
>See GC. art. 76 (“persons accused of offences shall be detained in the
occupied country”); Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International
Armed Conflicts, June 8, 1977, art. 85(4)(a) [hereinafter Geneva Protocol
I}; 1V Commentary, Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 278-80, 363 (ICRC, Jean S. Pictet ed.
1958) [hereinafter [V Commentary]; UK, The Military Manual of the
Law of Armed Conflict 293 (2004) (“forbidden to transfer ... not moved
outside occupied territory”); Paust, Detainees, supra, at 850-51; Paust,
Military Commissions, supra, at 24 n.68. Additionally, rights and duties
under the Geneva Conventions must be applied “in all circumstances.”
See, eg, GC, arts. 1, 3, 27; Paust, Detainees, supra, at 814-16.
Importantly, any detainee who is not a prisoner of war has certain
protections under the Geneva Civilian Convention and common Article 3,
which now applies in an international armed conflict (i.e., there are no
gaps in Geneva law that leave a person without any protections). See,
e.g., GC, arts. 3, 5, 13, 16, 27-33; U.S. Dep’t of Army Field Manual 27-
10, The Law of Land Warfare 31, § 73, 98, 247(b) (1956); IV
Commentary, supra, at 14, 51, 58, 595; Ill Commentary, Geneva
Convention Relative to the Treatment of Prisoners of War 5\ n.1, 76, 423
(ICRC, Jean S. Pictet ed. 1960); UK, 7he Manual of the Law of Armed
Conflict, supra, at 145, 148, 150, 216, 225; Derek Jinks, Protective Parity
and the Law of War, 79 Notre Dame L. Rev. 1493, 1504, 1510-11 (2004);
Paust, Detainees, supra, at 817-18, and references cited; Paust, Military
Commissions, supra, at 6-8 n.15; Marco Sassoli, “Unlawful
Combatants”: The Law and Whether It Needs to Be Revised, 97 Proc.,
Am. Soc’y Int'l L. 196, 197 (2003); William H. Taft, IV, The Law of
Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’! L. 319,
321-22 (2003) (William H. Taft, IV is a former legal adviser for the
United States Department of State); The Prosecutor v. Delalic, Case No.
{T-96-21-T (Trial Chamber, ICTY, Nov. 16, 1998), at para. 271 (“there is
no gap between the Third and the Fourth Geneva Conventions”);
Hamdan, 344 F Supp.2d at 161, 163. Even nationals of a neutral state are
protected while they are outside “the territory of” the detaining state (e.g,
~6-
merely a war crime; it is also a “grave breach” of the
Convention. GC, art. 147; 1V Commentary, supra note 2, at
280, 599. See also Geneva Protocol I, supra note 2, art.
85(4)(a). Persons who are not prisoners of war and who were
captured in occupied territory and eventually found at
Guantanamo must be prosecuted in the territory where they
were captured. Trial at Guantanamo would continue the
crime.
B. Limitations With Respect to Time
The President’s power and a military commission’s
jurisdiction are limited in terms of time to a circumstance of
actual war until the point when peace is finalized. See, e.g.,
Madsen v. Kinsella, 343 U.S. 341, 346-48 (1952)
(recognizing that military commission power is “related to
war” and acknowledging them as “war courts”); Jn re
Yamashita, 327 U.S. 1, 11-13 (1946) (adding id. at 20 n.7: a
military commission is a “war court”); Ex parte Quirin, 317
U.S. 1, 28 (1942); The Grapeshot, 76 U.S. (9 Wall.) 129,
132-33 (1869); Cross v. Harrison, 57 U.S. 164, 190 (1853)
(permitting jurisdiction until a “treaty of peace”); 24 Op.
while outside the U.S.) and they are, therefore, not within any exclusion
in GC Article 4. See, e.g., GC, art. 4 (neutral nationals are only excluded
from Part II] when “in the territory of’ the detaining state); IV
Commentary, supra, at 48; UK, The Manual of the Law of Armed
Conflict, supra, at 274; U.S. Dep’t of Army, Pam. 27-161-2, II
International Law 132 (1962); Paust, Detainees, supra, at 819 & n.28,
850-51 (also demonstrating that there is no distinction between persons
lawfully or unlawfully within territory).
That the U.S. has been an occupying power in Afghanistan and Iraq is
well-known. See, e.g, U.N. S.C. Res. 1438, U.N. SCOR, 58th Sess.,
4761st mtg. pmbl., U.N. Doc. S/RES/1483 (2003) (addressing U.K. and
U.S. recognitions); Jordan J. Paust, The U.S as Occupying Power Over
Portions of Iraq and Special Responsibilities Under the Laws of War
(May 2003), available at hittp://www.nimj.org/documents/
occupation(1).doc; Paust, Military Commissions, supra, at 24 n.67.
ate
Att’y Gen. 570, 571 (1903); 11 Op. Att’y Gen. 297, 298
(1865); Paust et al., International Criminal Law 309-10 (2d
ed. 2000); Winthrop, supra, at 831! (jurisdiction is tied to the
war powers, “exclusively war-court”), 837 (“An offence ...
must have been committed within the period of the war or of
the exercise of military government.... [Jjurisdiction ...
cannot be maintained after the date of a peace....”). As Major
General Henry Halleck wrote, military commissions “have
jurisdiction of cases arising under the laws of war,” adding:
“(they] are war courts and can exist only in time of war.”
Halleck, Military Tribunals and Their Jurisdiction, 5 Am. J.
Int’] L. 958, 965-66 (1911). Similarly, in 1865 Attorney
General Speed formally advised the President:
A military tribunal exists under and according to the
Constitution in time of war. Congress may prescribe
how all such tribunals are to be constituted, what
shall be their jurisdiction, and mode of procedure.
Should Congress fail to create such tribunals, then,
under the Constitution, they must be constituted
according to the laws and usages of civilized warfare.
They may take cognizance of such offences as the
laws of war permit... In time of peace neither
Congress nor the military can create any military
tribunals, except such as are made in pursuance of
that clause of the Constitution which gives to
Congress the power “to make rules for the
government of the land and naval forces.”
11 Op. Att’y Gen. 297, 298 (1865).
Thus, relevant presidential power is tied to a war
circumstance and law of war competencies such as the ability
Oi a war-related occupying power to set up a military
commission in war-related occupied territory to try violations
of the laws of war in accordance with the laws of war.
Congress can regulate the jurisdiction and procedure of
military commissions, but must do so consistently “with
-~8-
international law. Specifically, the requirements of
international law “are of binding force upon the departments
and citizens of the Government, though not defined by any
law of Congress” and neither Congress nor the Executive can
“abrogate them or authorize their infraction.” See, e.g., 11
Op. Att’y Gen. at 298-300; Madsen v. Kinsella, 343 US.
341, 348-49 (1952); see also Dooley v. United States, 182
U.S. 222, 231 (1901) (describing executive military powers
as “‘regulated and limited ... directly from the laws of war’”),
quoting 2 Henry W. Halleck, Jnternational Law 444 (\st ed.
1861); Jordan J. Paust, /nternational Law as Law of the
United States 106-07, 169-73 (2d ed. 2003), and cases cited
{hereinafter Paust, Treatise]; Paust, Detainees, supra, at 856-
61. Additionally, federal statutes must be interpreted and
applied consistently with international law. See, e.g., United
States v. Flores, 289 U.S. 137, 159 (1933); Cook v. United
States, 288 U.S. 102, 120 (1933); The Charming Betsy, 6
U.S. (6 Cranch) 64, 117-18 (1804); Talbot v. Seeman, 5 U.S.
(1 Cranch) 1, 43 (1801); 11 Op. Att’y Gen. at 299-300
(1865); 9 Op. Att’y Gen. 356, 362-63 (1859) (“law ... must
be made and executed according to the law of nations”);
Paust, Treatise, supra, at 99, 120, 124-25 nn.2-3.
II. The Geneva Convention Provisions, Including Those
Requiring a Regularly Constituted Court, Are Partly
Self-Executing and Have Jurisdictional Requirements
We disagree with the Circuit panel and agree with the
District Court that all persons detained in a theater of war
(regardless of their status) have rights under Geneva law and
that most provisions of the Geneva Conventions are self-
executing and are judicially enforceable. See Hamdan, 344
F.Supp.2d at 164-65; supra notes 1-2. The Supreme Court’s
longstanding test for enforceability is met. See, e.g., Baldwin
v. Franks, 120 U.S. 678, 683 (1887) (Field, J., dissenting)
(“when it declares the rights and privileges which the citizens
ie
or subjects of each nation may enjoy”); Edye v. Robertson,
112 U.S. 580, 598-99 (1884) (“enforcement ... in the courts
of the country.... whenever its provisions prescribe a rule by
which the rights of the private citizen or subject may be
determined”); Owings v. Norwood’s Lessee, 9 U.S. (5
Cranch) 344, 348-49 (1809) (“Whenever a right grows out
of, or is protected by, a treaty ... whoever may have this right,
it is to be protected”). Most of the articles of the
Conventions contain mandatory language, address express
and implied individual rights, and are self-executing under
the language of the treaty considered in context test (a test
that focuses on express and implied rights, e.g., “grows out
of”). See, e.g., GC, arts. 3, 5, 7-8, 27, 38, 43, 48, 72-73, 75-
76, 78, 80, 101, 147; Jn re Guantanamo Detainee Cases, 355
F.Supp.2d 443, 478-79 (D.D.C. 2005); Hamdan, 344
F.Supp.2d at 164-65; IV Commentary, supra note 2, at 9, 13,
52, 56-58, 64, 70-72, 74-80, 214-15; II] Commentary, supra
note 2, at 23, 85, 87, 90-91, 415, 472, 484-87, 492-93, 625,
628; Jordan J. Paust, Judicial Power To Determine the Status
and Rights of Persons Detained Without Trial, 44 Harv. Int'l
L.J. 503, 515-17 (2003), and references cited [hereinafter
Paust, Judicial Power]; Paust, International Law Before the
Supreme Court: A Mixed Record of Recognition, 45 Santa
Clara L. Rev. 829, 836 n.48 (2005) [hereinafter Paust, Before
the S.Ct]. Additionally, they are “executed” by
congressional legislation in, for example, 10 U.S.C. §§ 818,
821 and 28 U.S.C. § 2241. See Hamdan, 344 F.Supp.2d at
164 (“is implemented ... by ... 10 U.S.C. § 821”); Paust,
Judicial Power, supra, at 517 (discussing the habeas statute).
Moreover, the President has an unavoidable constitutional
duty to faithfully execute the laws of the United States, U.S.
treaties are such laws, and the President must execute, and is
bound by, treaty law. See, e.g., U.S. Const., art. I], § 3;
Francis v. Francis, 203 U.S. 233, 240, 242 (1906); The
Lessee of Pollard’s Heirs v. Kibbee, 39 U.S. (14 Pet.) 353,
415 (1840); 11 Op. Att'y Gen. 297, 299-300 (1865); 1 Op.
-10-
Att’y Gen. 566, 569-71 (1822); Paust, Treatise, supra, at 7-
11, 169-73, 488-89, 493-94, and cases cited. The District
Court was correct that even a non-self-executing treaty can
be used defensively (e.g., not to create a private cause of
action). Compare Hamdan, 344 F Supp.2d at 164 with Paust,
Judicial Power, supra, at 515 & n.42. Finally, the Geneva
Conventions are customary international law of universal
application and protect all persons covered during an armed
conflict.‘ As such, they are binding on the Executive and
rights thereunder are directly incorporable and judicially
enforceable. See, e.g., Paust, Treatise, supra, at 7-12, 169-
73, 175, 488-89, 493-94, and cases cited; Paust, Detainees,
supra, at 856-61; Paust, Before the S.Ct., supra at 839-40
n.53 (unanimous recognition especially that the Executive is
bound by the laws of war).
The Court of Appeals recognized that Geneva law creates
individual rights, but stated in error that because some
“See, e.g, Report of the Secretary-General Pursuant to Paragraph 2 of
Security Council Resolution 808 (1993), U.N. Doc. S/25704 (May 3,
1993), at para. 35 (the 1949 Geneva Conventions are “part of
conventional international humanitarian law which has beyond doubt
become part of international customary law”), unanimously approved by
U.N. S.C. Res. 827 (1993); Jordan J. Paust, M. Cherif Bassiouni, et al.,
International Criminal Law 658, 807 (2 ed. 2000); UK, The Manual of
the Law of Armed Conflict, supra note 2, at 14 (“In practice, the Geneva
Conventions are of virtually universal application and are generally
considered to embody customary international law.”); Annotated
Supplement to Commander's Handbook on the Law of Naval Operations
490 n.47 (U.S. Naval War College, Int’! Studies vol. 73, A.R. Thomas
and James C. Duncan eds. 1999) (“GPW is the universally accepted
standard for treatment of Pws; virtually all nations are party to it and it is
now regarded as reflecting customary law.”); Adam Roberts & Richard
Guelff, Documents on the Laws of War 8, 196 (3 ed. 2000); Paust,
Detainees, supra, at 813; see also Advisory Opinion o» the Legality of
the Threat or Use of Nuclear Weapons, 1996 I.C.J. paras. 81-82, reprinted
in 35 J.L.M. 809, 828 (1996).
« “o5~
remedies exist through international processes individuals
have no domestic remedies. For centuries, private remedies
have been available in courts for violations of the laws of
war. See, e.g., Ex parte Quirin, 317 U.S. at 27 (“From the
very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of
nations which prescribes ... the status, right and duties of
enemy ... individuals”); Paust, Treatise, supra, at 64 n.130,
226-27, 291-92 nn.489-95; Winthrop, supra, at 780 n.1;
Paust, Detainees, supra, at 852 n.154; see also Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004) (Breyer, J.,
concurring) (war crimes are judicially actionable); The
Paquete Habana, 175 U.S. 677, 698 (“law of war”), 714
(1900); Freeland v. Williams, 131 U.S. 405, 416-17 (1889)
(“no civil liability attached” when no war crime); Ford v.
Surget, 97 U.S. 595, 605-06 (1878) (individuals “relieved
from civil liability” where no war crime occurred); Mitchell
v. Harmony, 54 U.S. (13 How.) 115, 137 (1851) (suit could
be brought in “any district in which the defendant might be
found”); Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (Chase,
J.); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 279 (1796) (Iredell,
J.) (“rights ... derived from the laws of war ... end in that case
the individual might have been entitled to compensation”);
Hilao v. Estate of Marcos, 103 F.3d 767, 777 (9" Cir. 1996);
Kadic v. Karadzic, 70 F.3d 232, 242-43 (2d Cir. 1995), cert.
denied, 518 U.S. 1005 (1996); Linder v. Portocarrero, 963
F.3d 332, 336-37 (11 Cir. 1992); Presbyterian Church of
Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 310-11
(S.D.N.Y. 2003). There is nothing in the text or drafting
history of the 1949 Geneva Conventions requiring that
individuals must lose such remedies. Diplomatic remedies
are mentioned merely by way of example. Moreover, as
customary laws of war, rights reflected in Geneva law are
remediable like other violations of the laws of war and
customary law has long been a background for interpretation
of the treaties (see, e.g., Paust, Treatise, supra, at 12, 61, 73,
affine
211, 316, 388, 409, 437). Johnson v. Eisentrager, 339 U.S.
763 (1950), addressed the 1929 GPW and occurred prior to
changes in the 1949 GPW and treaty-based and customary
human rights law requiring access to courts, the right of
review, and rights to a remedy — law that is infused into
common Article 3 of the 1949 Conventions. See, e.g., Paust,
Military Commissions, supra, at 6 n.15, 25-26; Paust,
Detainees, supra, at 816; Paust, Judicial Power, supra, at
507-10, 511 n.27, 514.
We also agree with the District Court that today common
Article 3 of the Geneva Conventions sets forth a minimum
set of fundamental rights and duties in an international armed
conflict and that these include the jurisdictional requirement
of trial before a “regularly constituted court affording all the
judicial guarantees which are recognized” today as
customary human rights to due process incorporated through
Article 3. See Hamdan, 344 F.Supp.2d at 162-63, 165;
Paust, Judicial Power, supra, at 511 n.27, 514 & n.32; Paust,
Detainees, supra, at 816-17 n.19; IV Commentary, supra
note 2, at 14 (“This minimum requirement in the case of a
non-international armed conflict is a fortiori applicable in
international conflicts.”), 58; Jean-Marie Henckaerts &
Louise Doswald-Beck, Customary International
Humanitarian Law vol. |: Rules 299, 306-19 (ICRC 2005);
Paust et al., International Criminal Law, supra, at 693, 695,
813-14, 816; U.S. Dep’t Army, TJAG School, Operational
Law Handbook 8-9 (2003); Jinks, supra note 2, at 1508-11;
Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. United States), 1986 I.C.J.
paras. 218 (“There is no doubt that, in the event of
international armed conflicts, these rules also constitute a
minimum yardstick, in addition to the more elaborate rules
which are also to apply to international conflicts; and they are
rules which ... reflect... ‘elementary considerations of
humanity’”), 255 (is included in “general principles of
humanitarian law ... in the context of armed conflicts,
alte
whether international in character or not”); The Prosecutor v.
Delalic, IT-96-21-A, Judgment (Appeals Chamber,
International Criminal Tribunal for Former Yugoslavia
(ICTY), 20 Feb. 2001), at paras. 143, 150, reprinted in 40
I.L.M. 630 (2001); The Prosecutor v. Tadic, IT-94-1-AR72
(Appeals Chamber, ICTY, Oct. 2, 1995), para. 102 (“The
International Court of Justice has confirmed that these rules
reflect ‘elementary considerations of humanity’ applicable
under customary international law to any armed conflict,
whether it is of an internal or international character.
(Nicaragua Case [1986 1.C.J.], at para. 218). Therefore, at
least with respect to the minimum rules in common Article 3,
the character of the conflict is irrelevant.”), reprinted in 35
I.L.M. 32 (1996); The Prosecutor v. Tadic, Decision on the
Defense Motion on Jurisdiction (Trial Chamber, ICTY, 10
Aug. 1995), paras. 65, 67, 74; Abella v. Argentina, Case
11,137, Inter-Am. C.H.R., paras. 155-56, OEA/ser.L/V.97,
doc. 38 (1997). Moreover, the same rights and duties are
mirrored in Article 75 of Geneva Protocol |, a treaty
provision that is also customary international law universally
applicable during any international armed conflict. See, e.g.,
Taft, supra note 2, at 321-22; Paust, Detainees, supra, at 817
n.19, 818 & n.27.
The statement of the Court of Appeals that members of al
Qaeda could not be protected by Geneva law because al
Qaeda is not a party to the 1949 Geneva Conventions is in
fundamental error. Cf Williams, J., concurring. Whenever
the Conventions apply to certain armed conflicts (such as
those in Afghanistan and Iraq) all persons in the area are
protected under various articles in the Conventions whether
or not they are members of some group that cannot ratify
treaties or be at war. See, e.g., Paust, Detainees, supra, at
816-21, 829-30; Taft, supra note 2, at 321-22. Further,
members of al Qaeda are most likely nationals of various
parties to the Conventions and are thus protected.
Additionally, the Conventions reflect customary international
-14-
law that is universally applicable and protects all human
beings found in a theater of war or occupied territory
according to the terms of various articles. If the Court of
Appeals had been correct that laws of war do not apply to al
Qaeda, they could not be prosecuted for war crimes and even
U.S. military commissions in Afghanistan or Iraq are
necessarily without jurisdiction. This is, however,
fundamental error. Kadic recognized the application and
judicial enforcement of common Article 3 even though
Bosnian Serbs could not ratify the Geneva Conventions.
Karadzic has also been indicted by the ICTY for violations of
Geneva law. See, e.g., Paust et al., /nternational Criminal
Law, at 88-99. Linder is similar with respect to the liability
of the Contras. In this sense, rights and duties under Geneva
law are concomitant. Also, “private contractors” in Iraq have
rights and duties under Geneva law even though their
companies cannot ratify treaties.
The President's Military Order and DOD rules for
military commissions assure denial of the customary and
treaty-based human rights to trial before a regularly
constituted, competent, independent, and impartial court;’ to
*See, e.g, Jordan J. Paust, Antiterrorism Military Commissions: The Ad
Hoc DOD Rules of Procedure, 23 Mich. J. Int'l L. 677, 687-88 (2002)
{hereinafter Paust, DOD Rules); A. Christopher Bryant & Carl Tobias,
Quirin Revisited, 2003 Wis. L. Rev. 309, 360-61 (2003); Mark A.
Drumbl, Victimhood in Our Neighborhood Terrorist Crime, Taliban
Guilt, and the Asymmetries of the International Legal Order, 81 N.C. L.
Rev. 1, 10-12, 58-59 (2002); Harold Hongju Koh, The Case Against
Military Commissions, 96 Am. J. Int'l L. 337, 338-39 (2002); Detlev F.
Vagts, Which Courts Should Try Persons Accused of Terrorism”, 14 Eur.
J. Int'l L. 313, 322 (2003); see also Norman Abrams, Anti-Terrorism and
Criminal Enforcement 330-31 (2003), Michal R. Belknap, A Putrid
Pedigree The Bush Administration's Military Tribunals in Historical
Perspective, 38 Cal. W.L. Rev. 433 (2002); Justice Sandra Day
O'Connor, Vindicating the Rule of Law The Role of the Judiciary, 2
Chinese J. Int'l L. 1, 3-4 (2003) (quoting the Declaration of Rights of the
=
review by a competent, independent, and impartial court of
law;° and to various other human rights, including freedom
from discrimination on the basis of national origin (since
only aliens will be subject to prosecution before the military
commissions), rights to equality of treatment and equal
protection, and “denial of justice” to aliens.’ Such rights are
Massachusetts Constitution, art. 29, which “framed by John Adams,
boldly declares, ‘It is the right of every citizen to be tried by judges as
free, impartial and independent as the lot of humanity will admit,”” and
adding: “Individual judicial independence is necessary if each case is to
be resolved on its own merits, according to the facts and the law.”).
*See, e.g., Paust, Military Commissions, supra, at 11 (U.S. Exec. Country
Reports addressing this violation of fundamental human rights), 15 &
n.34, 22-23; Paust, DOD Rules, supra, at 678-81, 685-86. The
Executive’s military “Review Panel” may not overturn a conviction,
reverse or amend a decision, or order dismissal or release of the person
(or order anything else), because it bound to “either (a) forward the case
to the Secretary of Defense with a recommendation as to disposition, or
(b) return the case to the Appointing Authority for further proceedings” if
a majority of the panel decides that “a material error of law occurred.”
Military Commission Order No. | (Mar. 21, 2002), § 6(H)(4), available
at http://www.defenselink.mil/news/Mar
2002/d20020321ord.pdf. Further, only one member of the panel must be
a lawyer, since only one member must “have experience as a judge,” and
no member of the pane! must have been a judge with expertise in the laws
of war, international law more generally, or criminal law more generally.
See id. § 6(H)(4). The final “decision” in such a “review” and
“recommendation” system will be made by the Secretary of Defense or
the President. /d. § 6(H)(2), (6). See also Reid v. Covert, 354 U.S. 1, 36
n.66 (1957) (“Liberty can have nothing to fear from the judiciary alone,
but would have everything to fear from its union with either of the other
departments....”) (quoting Alexander Hamilton, The Federalist No. 78
(1788)).
"See, e. g., Paust, Military Commissions, supra, at 10-17; Paust, DOD
Rules, supra, at 678-85 (including impermissible discrimination on the
basis of national origin, denial of equal access to courts and to equality of
treatment and equal protection of the law, “denials of justice” in violation
of customary international law, and denial of the fundamental human
-16-
incorporated through common Article 3 of the Geneva
Conventions as minimum guarantees for any person detained
in any armed conflict, regardless of their status (e.g., as
combatants or noncombatants) and whether or not the due
process requirements are mirrored elsewhere in the
Conventions. See, e.g., GC, art. 3(1)(d); Paust, Judicial
Power, supra, at 511 n.27, 514 & n.32; Paust, DOD Rules,
supra, at 678 n.9. The same customary human rights are
incorporated into the requirements of Article 75(4) of
Protocol I.
Additionally, there are related points made about military
commission jurisdiction and due process in a 1970
Department of Defense, Office of the General Counsel, and
Department of the Army, OTJAG, Military Justice Study on
“Military Commissions,” cited in 23 Mich. J. Int’) L. 1, 2 n.7
(2001) and reproduced in an appendix in an amici brief
below and here from Professor (then U.S. Army Captain,
JAGC) Paust’s personal copy as an Appendix. In particular,
offenses must be committed within the convening authority’s
field of command (App. 1b, 3b, pt. I(A)); there is a need “to
the greatest degree possible” to approximate a civilian court
(App. 7b, pt. I(C)); regarding trial procedures, “[b]oth logic
and precedent indicate that a lesser standard [than that for
courts-martial] for military commissions would not be
constitutionally permissible” (App. 12b, pt. V(A)); “the
procedures adopted should provide every safeguard which an
accused would be entitled to in a court-martial or a Federal
district court” (App. 14b, pt. V(A)); and “rules shouid, as far
as practicable, conform with the rules of evidence generally
recognized in the trial of criminal cases in Federal district
courts” (App. 1 8b, pt V(E)).
right to fair, meaningful and effective judicial review of the propriety of
detention).
a *
III. A Violation of the Separation of Powers
Third, a serious violation of the separation of powers
exists with respect to the attempt by the President in his 2001
Military Order to preclude any judicial review of U.S.
military commission decisions concerning offenses against
the laws of war and other international crimes over which
there is concurrent jurisdictional competence in federal
district courts. See U.S. Dep’t Defense, Military
Commission Order No. |, i, § 7(B)(1)-(2); see also id. §§ 6 H
(4)-(6), 7 B. He cannot do so lawfully. See, e.g., Paust,
Military Commissions, supra, at 10-11, 15; Paust, Judicial
Power, supra, at 518-24. Additionally, under Article |,
Section 8, clause 9 of the United States Constitution,
Congress merely has power “[t]o constitute Tribunals inferior
to the Supreme Court” and, thus, tribunals subject to ultimate
control by the Supreme Court. See James E. Pfander,
Federal Courts: Jurisdiction-Stripping and the Supreme
Court's Power to Supervise Inferior Tribunals, 78 Tex. L.
Rev. 1433, 1454-56 (2000); see also Article I, Section 8,
clause 14 of the United States Constitution (which gives
Congress the authority to make rules for the government of
the land and naval forces). For this reason, the congressional
authorization for creation of military commissions in 10
U.S.C. § 821 is necessarily subject to the constitutional
restraint contained in Article 1, Section 8, clause 9 and the
President’s attempt to preclude any form of judicial review is
constitutionally improper whether or not a_ military
commission has support in a_ general congressional
authorization. The Supreme Court has already recognized
the propriety of habeas review concerning detention at
Guantanamo. Rasul v. Bush, 542 U.S. 466 (2004); see also
Paust, Judicial Power, supra, at 517 & n.47, 519-20 n.67.
-18-
CONCLUSION
Military commissions are “war courts” and their
jurisdiction is limited in terms of context and time to a
circumstance of actual war and in terms of place to an actual
theater of war or a _ war-related occupied territory.
Guantanamo, Cuba is not in a theater of war or war-related
occupied territory and, thus, a military commission situated
there does not have lawful jurisdiction. Second, some of the
present DOD rules of procedure and instructions for military
commissions do not comply with international law, which is
constitutionally-based supreme law of the United States
binding on the President and the courts. Since their use
would be unlawful, trial! in the military commissions
presently constituted would be without lawful authority. In
particular, the President’s Military Order unlawfully attempts
to preclude the fundamental right to trial in a regularly
constituted, competent, independent, and impartial court; and
to review by a competent, independent, and impartial court of
law. This alone obviates any lawful authority that the
military commission process might have.
Third, a serious violation of separation of powers exists
because the military commissions at Guantanamo do not
comply with Article 1, Section 8, clause 9 of the U‘S.
Constitution, which requires that tribunals be constituted
“inferior to the supreme Court” and, thus, subject to its
ultimate control. For this reason alone, the military
commissions are unlawfully constituted.
In view of these three independent reasons why the
military commissions do not have lawful jurisdiction, it is not
in the interest of the U.S. to allow individuals to be brought
before an_ illegally constituted and unconstitutional
commission and defendant should not have to endure an
illegal process in an unlawful commission without
jurisdiction.
-19-
Amici curiae International Law Professors request that
the Supreme Court reverse the decision of the Court of
Appeals.
Respectfully submitted on behalf of amici,
Linda A. Malone*
Marshall Wythe Foundation Professor of
Law and Director of the Human
Rights and National Security Law
Program
College of William and Mary
613 S. Henry Street, Suite NW 240
Williamsburg, VA 23185
(757) 221-3844
Jordan J. Paust
Mike and Teresa Baker Law Center
Professor
University of Houston Law Center
100 Law Center
Houston, TX 77204
(713) 743-2177
*Counsel of Record for Amici Curiae
DATED: JANUARY 5, 2006
-—la—
APPENDIX A
LIST OF AMICI
M. Cherif Bassiouni is Distinguished Research Professor of
Law and President of the International Human Rights Law
Institute at DePaul University College of Law.
Nathaniel Berman is Professor of Law at the Brooklyn Law
School.
Richard B. Bilder is Foley &-Lardner-Bascom Emeritus
Professor of Law at the University of Wisconsin Law School.
Carolyn Patty Blum is Clinical Professor of Law Emeritus at
the University of California, Berkeley School of Law.
Benjamin Davis is Associate Professor of Law at the
University of Toledo College of Law.
Daniel H. Derby is Professor of Law and Director of
International Programs at Touro College Jacob D. Fuchsberg
Law Center.
Mark A. Drumbl is Ethan Allen Faculty Fellow and
Associate Professor of Law at Washington & Lee University
School of Law.
Brian J. Foley is Assistant Professor of Law at Florida
Coastal School of Law.
Diane Geraghty is Professor of Law at Loyola University,
Chicago, School of Law.
Peter Krug is Professor of Law & Herman G. Kaiser
Foundation Chair in International Law at the University of
Oklahoma Law Center.
—2a-—
Bert Lockwood is Distinguished Service Professor and
Director of the Urban Morgan Institute for Human Rights at
the University of Cincinnati School of Law.
Thomas McDonnell is Professor of Law at Pace University
School of Law.
Jennifer Moore is Professor of Law at the University of New
Mexico Schoo! of Law.
Makau Mutua is Professor of Law at the State University of
New York at Buffalo School of Law.
Jerry E. Norton is Professor of Law at Loyola University,
Chicago, School of Law.
Hari M. Osofsky is Visiting Assistant Professor at the
University of Oregon School of Law.
Cesare P.R. Romano is Assistant Director, Project on
International Courts and Tribunals at New York University.
Leila Nadya Sadat is Henry H. Oberschelp Professor of Law
at Washington University School of Law.
Lowell Schechter is Professor of Law at Northern Kentucky
University, Chase College of Law.
Andrea K. Schneider is Professor of Law at Marquette
University Law School.
Edward F. Sherman is Moise S. Steeg, Jr. Professor at Tulane
University School of Law.
Nadine Strossen is Professor of Law at New York Law
School and President of the American Civil Liberties Union.
A. Dan Tarlock is Distinguished Professor of Law at
Chicago-Kent College of Law.
Daniel C. Turack is Professor of Law at Capital University
Law School.
—3a—
Connie de la Vega is Professor of Law and Academic
Director of International Programs at the University of San
Francisco School of Law.
Gabriel Wilner is Professor of International Law at the
University of Georgia School of Law.
Edieth Y. Wu is Associate Dean and Professor of Law at
Thurgood Marshall School of Law.
TABLE OF CONTENTS FOR APPENDIX B
|
Vi.
Page(s)
Establishment of a Military Commission..... 1b
Selecting the Convening Authority .............. Ib
Procedure for Convening the Commission...5b_ -
Composition of the Commission.................. 7b
Filing of Charges and Specifications............ 8b
Apprehension and Imposition of Restraint,.. 9b
Pretrial Investigation ................cssscessesseees Llb
IN sicscinesnsccnsrinininiiectiicinssinasinni 12b
Trial in general statutory and constitutional
limitations; precedents.........:...cseseceeeeeeees 12b
Counsel; who prosecutes, defends.............. 14b
Power to subpoena witnesses .................00. 16b
Granting of immunity ................cccceceeseeeeees 17b
Rules of evidence........sccssccsssesessssesssseeeesseees 18b
Limitations on sentencing power................ 19b
SEALE Ae nena TCT TORRE 22b
VIL.
Use of the Regular Military Review
RITRRIID onc csecsetcensrsonsnetonnatineiioniistanaionanetine 22b
Special Review System. .........csesseseeseeees 25b
Review by Convening Authority Alonc.....26b
Execution of Sentences ...........ccccccceeeseseeeees 27b
APPENDIX B
MILITARY COMMISSIONS
PREPARED BY D.A. JAGO, MJ AND JAG SCHOOL &
GEN. COUNSEL OFFICE (1970)
I. Establishment of a Military Commission
A. Selecting the Convening Authority
Traditionally, military commissions have been
established by military commanders to try offenses which
were committed both (1) within a theater of war and (2)
within the convening authority's field of command. Winthrop
836-37. Thus, for example, the American commander in the
Philippines convened the military commission in the
Yamashita case in order to try Japanese prisoners of war for
offenses committed within his jurisdiction. Jn re Yamashita,
327 U.S. 1, 9-10 (1946). The Court in that case noted that the
offenses involved were committed within the Philippines, the
conven~ing authority's field of command, and added that
military commissions “may be appointed by any field
commander, or by any commander competent to appoint a
general court martial....” 327 U.S. at 10.
In this case, a military commission could conceivably be
convened by an appropriate American commander in
Vietnam; in this way, the exact procedure used in Yamashita
and described in Winthrop could be followed. The trial
would have to be conducted in Vietnam, and the defendants
would have to be arrested in the United States and
transported abroad. Such an approach is not entirely without
precedent; a companion case to Yamashita involved a former
Japanese officer who was arrested in Japan and brought to
-2b-
the Philippines for trial. Homxna v. Patterson, 327 U.S. 759
762n. 4 (1946). Trial in Vietnam would also dispense some
of the arguments which would be raised under Ex parte
Milligan, 4 Wall. (71 U.S.) 2 (1866), since no American
civilian courts would be open and functioning in the area
whore the trial was held. See Winthrop 836.
There are, however, very good policy reasons for
conducting this particular trial within the United States. Trial
in Vietnam would require the defendants to be arrested and
taken into a combat zone, far from home and far from many
of the witnesses they would wish to call in defense. It would
be an expensive proposition, both for the Government and
the defense, and conflicts with concurrent court-martial
proceedings in the United States might well develop. Since
the trials of the military personnel involved are taking place
within the United States, the Army would seem to be
imposing an unnecessary and discriminatory hardship on the
accused ex-soldiers. The press might argue that trial in an
isolated area was an attempt to discourage full reporting of
the events at trial. Moreover, given the hostility of the
Vietnamese Government to any trials arising out of the Son
My Incident, we could expect international complications to
arise from any decision to conduct proceedings within
Vietnamese territory. It should also be noted that United
States ex. Rel. v. Quarles, 350 U.S. 11 (1955), in which the
Supreme Court struck down an attempt to exert military
jurisdiction over civilians, involved an overseas trial
Thus, it would seem, preferable to depart from the typical
procedure and hold any military commission proceedings in
the United States. Such a decision on venue would, however,
Sharply limit the Army's flexibility in selecting the
appropriate convening authority. The language of both
Winthrop and of the Supreme Court in Yamashita indicates
that the convening authority must have held command
authority over tine area where the offense was committed. Ex
parte Quirin, 317 U.S. | (1942), which involved a military
-3b-
offense committed within the United States, is no exception.
There the President convened the military commission, 7
Fed. Reg, 5103 (1942), and he, as Commander-in-Chief,
certainly had command jurisdiction within the United States.
Moreover, the commander who convenes the military
commission ought to be one who ordinarily possesses
military justice responsibilities; the reference in Yamashita to
commanders competent to appoint general courts-martial
certainly makes this desirable. Finally, the convening
authority ought to have jurisdiction over the place where the
trial is held. This requirement is not only traditional in
military law; it also follows from the uniform practice in
regard to military commissions. Under Article 22 of the U.
C.M. J., the only general court martial convening authorities
who meet all those tests are the President and the Secretary
of the Army.
Historically, there is little precedent for actions by either
the President or the Secretary; almost all military
commissions have been convened by military commanders in
the field. The International Military Tribunal at Nuremberg
was, of course, established by executive-agreement among
the allied powers, but the subsequent trials conducted by the
United States alone were authorized by a military ordinance
signed by the four allied military commanders in occupied
Europe. T. Taylor, Final Report on the Nuremberg War
Crimes Trials 250 (1949).
Nevertheless, there is clear authority for action by the
President. Jn Ex parte Quirin, 317 U. S. | (1942), President
Roosevelt, utilizing both his statutory power and his
constitutional authority as President and Commander-in-
Chief, appointed a military commission consisting of seven
general officers to try a group of German saboteurs. 7 Fed.
Reg. 5103 (1942). A variant of this procedure was used after
the civil war to try Henry Wirz, the commandant of the
Confederate prison at Andersonville, Georgia. In that case
the Assistant Adjutant General convened the commission “by
—4b-
order of the President of the United States.” H. R. Ex. Doc.
23, 40th Cong., 2d Seas. (1866). The Wirz procedure was
also employed late in World War II when the President, by
order of January 11, 1945, authorized certain military
commanders to convene military commissions to try German
saboteurs. The commanders were to act “under the
supervision of the Secretary of War.”
Although the Secretary could conceivably act alone, the
Quirin, Wirz, and 1945 saboteurs precedents argue strongly
that it should be either the President himself or an official
acting under authority of a Presidential delegation who
convenes the military commission in this case. In any case,
the President would probably have to act to give clear
authority for the creation of any special procedural rules
which are thought necessary for this military commission. By
Article 36 of the Uniform Code of Military Justice, the
President is given the power to specify rules of procedure for
military commissions. The only currently effective
presidential exercise of this power is a brief statement found
in paragraph 2 of the Manual for Courts Martial. That
paragraph states that military commissions are to be “guided”
by the law and procedures applied by courts-martial, “subject
to any applicable rule of international law or to any
regulations prescribed by the President or by any other
competent authority. “Since it is not clear who a “competent
authority” might be in this case, it would be advisable to have
a clear presidential delegation as a basis for any special
procedural rules which needed to be promulgated. Action by
the President could also allow invocation of any inherent
power to appoint military commissions which the
Commander-in-Chief might possess, independent of a
statute. See Ex parte Quirin, 317 U.S. at 29.
For all these reasons, the best procedure would be to
convene the military commission either by order of the
President or under authority of a presidential delegation,
presumably to the Secretary of Defense or the Secretary of
-~Sb-
the Army but conceivably to a military commander within
the United States. Under Article 140 of the Uniform Code of
Military Justice, all of the President's authority is delegable.
If the delegation were to an official subordinate to the
Secretary of Defense, the actions of the delegated convening
authority could, under the precedent of the 1945 saboteur
case, be made subject to the “supervision” of any superior
official. Accordingly, it would be possible to delegate, by
executive order, the President's power to establish a military
commission and his power to specify the procedures the
commission is to utilize. The President's delegate could then
do what President Roosevelt did in Quirin -- name the
members of the commission, define its jurisdiction, and
specify certain essential procedural points. The President's
delegate should probably specify that the defendants should
be accorded all substantive rights possessed by defendants
tried by general court-martial, and that the commission could
devise only those necessary additional procedures for which
no guiding precedent can be found in court martial practice.
B. Procedure for Convening the Commission
Assuming that the commission is to be convened under
_ the authority of the President, the first step would be the
issuance of an Executive Order authorizing the Secretary of
the Army (or other delegate) to convene a military
commission to try former military personnel for offenses
against the law of war; the order could be in general terms, or
it could be limited to offenses alleged to have been
committed at Son My. The order would cite as authority the
President’s power as Commander-in-Chief, Articles 18-21,
36, and 140 of the Uniform Code of Military Justice, and
perhaps Article 22 which makes the President a general court
martial convening authority). It would delegate both the
power to convene the commission and the power to specify
its procedures in accordance with Article 36 of the Code.
Redelegation would be permitted, citing Article 140.
~6b-
An alternative would be to follow the practice used in
Quirin and to have the Executive Order specify the
membership of the commission, the essential procedural
points, and the names of the defendants. This procedure has
several drawbacks. First, it would unnecessarily involve the
White House in many detailed questions about the
composition and organization of the tribunal in which the
President would undoubtedly have no interest. Second, it
would, by specifying the names of the defendants, rule out
the conduct of a pretrial investigation analogous to that
required for courts-martial by Article 32 of the Code. Third,
it would make the President the convening authority and
would involve him in a number of trial matters -- such as
determining the propriety of confinement and reviewing the
record -- which he would undoubtedly prefer to have handled
by others. The preferable procedure would be a brief
Executive Order delegating authority.
If such a brief order were issued giving the Secretary
power to act as the President’s delegate, the Secretary should
immediately issue an order convening the commission,
specifying its jurisdiction and authority, and naming its
members. The order would state that the commission would
meet at a specified place at such future time as charges
should be referred to it. Such action would be necessary to
give the commission at least de jure existence prior to
charging or apprehending the defendants; it would allow the
defendants to sue for a writ of habeas corpus immediately
upon being placed under restraint, and it might result in a
pretrial judicial determination on the question of jurisdiction.
Such an early decision on the jurisdictional question would
seem to be in the interest of both the Government and the
defendants. The Secretary's order would specify any
important procedural questions (such as the way the
commission will receive cases and the type of review to be
given its decision) and would redelegate to the commission
the powers to devise those necessary additional procedures
-Tb-
for which no guiding precedent can be found in court-martial
practice.
C. Composition of the Commission
According to Winthrop, there are no limitations at all
upon the composition of military commissions; any number
of members, military or civilian, may be chosen by the
convening authority. Ordinarily, however, commissions --
like courts-martial -- consists of military officers senior in
rank to any defendants. Winthrop 835-36. The commission
in Quirin consisted of seven officers; in Yamashita, it
consisted of five; in the Civil War trial of Clement
Vallandigharn, there were nine officers on the court, and the
same number was used in the Wirz trial immediately after the
war. The American occupation courts in Germany after
World War II, which the Supreme Court treated as military
commissions in Madsen v. Kinsella, 343 U.S. 341 (1952),
consisted of three American civilians, two “judges” and one
“magistrate.” Jd. at 344. Winthrop notes that “a commission
of a single member would be as strictly legal as would be one
of thirteen members. “ Winthrop 835.
In this case, two important considerations will affect any
decision about the composition of the tribunal. First, the
com~mission should be constituted in a manner which will
not give rise to the argument that the defendant has been
deprived of any important rights by the use of a military
commission rather than a general court martial. Second, the
commission ought to be organized in a way which will
counteract, to the greatest degree possible, the argument that
the defendants have sacrificed crucial rights by being
deprived of a trial before a civilian court. The first
consideration argues for appointing a court of at least five
members, including an analogue of a military judge, and for
giving the parties challenges to members of the court to at
least the same degree as would be allowed in a trial before a
general court martial. The second consideration gives rise to
-8b-
more difficult problems. Lacking the power to compel jury
service, it would be impossible to impanel a randomly
selected group of jurors as part of the commission. However,
members of the panel ought to be chosen in a way which will
not give rise to the argument that it has been “stacked”
against the defendants. Although military personnel certainly
ought to be included to insure some degree of expertise in
military law and in the realities of the battlefield, thought
should certainly be given to including on the panel civilian
members or activated reservists who are not closely tied in
the public eye with the military. Although the “judge” or
presiding officer should be experienced in military law,
nonmilitary jurists or even laymen might well be included on
the panel. Inclusion on the panel of persons not on active
military duty will also lessen the impact of any “command
influence” arguments which could result from having the
commission convened under the authority of the President
and the Secretary.
Il. Filing of Charges and Specifications
According to Winthrop, the ordinary practice in regard to
charges and specifications for offenses triable by military
commission is “precisely as in the court martial practice.”
Winthrop 842. Article 30 of the Uniform Code of Military
Justice, which governs charges and specifications, is not
limited in effect to court-martial offenses, and may govern
military commissions as well. It requires the signing of
charges and specifications, under oath, by a person subject to
military law, and states that the signer must declare both that
he has personal knowledge of, or has investigated, the
matters set forth and that the charges are true in fact to the
best of his knowledge and belief. Article 30 also incorporates
a requirement that the person accused be informed of the
charges against him “as soon as practicable.” In the Quirin
case, for example, the charges and specifications were signed
-9b-
by a colonel the day after the commission was convened, and
were attested by The Judge Advocate General.
In order to comply with the traditional practice of
military commissions, with Article 30 of the U. C. M. J., and
with the notice requirements imposed by the Due Process
clause of the Fifth Amendment, charges and specification
ought to be drafted, signed, attested, and served shortly after
the convening of the commission; the same procedure
utilized for courts-martial should be employed. Presumably,
the evidence developed by the CID would be referred to a
disinterested officer, and the charges and his report and
recommendations would be referred to the convening
authority for action.
II]. | Apprehension and Imposition of Restraint,
The sections of the Uniform Code of Military Justice
governing “apprehension” and “imposition of restraint,
“articles 7 and 9, state specifically that they apply both to
persons ordinarily subject to the Code and tothose “subject to
trial thereunder. “This latter category appears to apply to
persons, not ordinarily subject to military law, who are
triable in a military tribunal for violation of the law of war.
Hence, the Code seems clearly to authorize apprehension and
restraint of persons subject to trail by military commission.
Article 7 governs “apprehension. “ It allows a person to
be apprehended, or taken into custody, “upon reasonable
belief that an offense has been committed and that the person
apprehended has committed it.” Paragraph 19 of the Manual
for Courts Martial, which also applies to all persons subject
to trial under the Code, authorizes all commissioned,
noncommis ‘ioned, and warrant officers to effect such
apprehensions.
—10b-
The provisions governing the imposition of restraint are
slightly more complicated. Under the Code, arrest is defined
as moral restraint imposed by oral or written orders;
confinement is physical restraint. Article 9 specifically
grants authority for either the arrest of the confinement of
civilians subject to trial under the Code. It states, however,
that a civilian subject to trial under the Code may be ordered
into arrest or confinement only upon order of “a commanding
officer to whose authority is subject.” Although it is not
altogether clear who the “commanding officer” would be in
the case of civilians not serving with a military organization,
it would probably be safe to assume that, in this context, the
proper person would be the authority convening the military
commission. Article 9(c), the relevant subsection, also
declares that the authority to order civilians into arrest or
confinement may not be delegated. Hence, the convening
authority would have to sign any arrest or confinement orders
personally.
Article 10, which discusses the type of restraint which is
appropriate in certain cases, for some reason is limited in
effect to those persons “who are charged with an offense
under the Code. Hence, it would be inapplicable to this
situation. However, Article 9 does provide adequate authority
for the arrest or confinement of all persons, subject to trial by
a military court, and such power has traditionally been
exercised in commission cases. Although there is no absolute
requirement that civilian defendants before a military
commission be ordered into either arrest or confinement, in
order to assure presence at trial, it might well be wise to
“arrest” persons to be tried before the commission and
subject them to the “moral restraint” of an order not to leave
the country and to appear at the time set for trial. More
onerous restraints probably would be unnecessary, especially
since no similar precautions were taken when military
personnel were charged for offenses committed at Son My.
—l1b—
IV. Pretrial Investigation
The available records disclose no military commission
case in which a formal pretrial investigation, such as that
required for general courts-martial by Article 32 of the
Uniform Code of Military Justice, was conducted. Usually
charges have been referred directly to the military
commission by the convening authority. In fact, President
Roosevelt's order of January 11, 1945, which authorized the
trial by military commission of German saboteurs,
specifically stated that pretrial investigations were not to be
required. Since Article 32 is limited in effectto general
courts-martial, there is clearly no statutory requirement
involved.
Nevertheless, prudence would seem to require that some
sort of pretrial investigation be ordered. First, omitting this
procedural step would give rise to the argument that the
defendants were being deprived of an important protection by
ordering trial by military commission rather than trial by
general court-martial. Second, a formal pretrial investigation
can be an important device for insulating the convening
authority from the process of analyzing and refining the
charges. Giving this task to an investigating officer will make
the process more objective and less subject to the charge that
the trials are politically motivated.
Accordingly, it would probably be best to appoint a
disinterested investigating officer and to proceed with a
pretrial investigation just as would be required by Article 32.
After the pretrial investigation, the convening authority
should refer the charges to the appropriate legal officer for
consideration and advice. Paragraph 35 of the Manual for
Courts-Martial states that if the Secretary is the convening
authority, advice should be sought from The Judge Advocate
General. After receiving the prope: legal advice and the
report of the investigating officer, the convening authority
~12b-
would then refer any appropriate charges to the commission
for trial.
V. Trial procedure
A. Trial in general statutory and constitutional
limitations; precedents
It is well settled that the mandate of section 2 of Article
III of the Constitution that the “Trial of all crimes. . . shall be
by Jury” is not applicable in cases which “arise in the land
and naval forces” if military jurisdiction is asserted within
the constitutional authority to discipline the active military
services or to provide for trial of military offenses against the
law of nations, Compare U.S. Const. Art, 1, sec, 8, cl. 14,
with U. S. Const. Art. 1, sec. 8, cl 10, and Ex parte Quirin,
317 U. S. 1, 40 (1942). But the specific protections of the
Bill of Rights, unless made inapplicable to military trials b
the Constitution itself, have been held applicable to courts-
martial. Burns v. Wilson, 346 U.S. 137, 142 (1953); United
States v. Jacoby, 11 USCMA 428, 29 CMR (1960); United
States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967);
United States v. Bearchilld, 17 USCMA 598, 38 CMR 396
(1968). Both logic and precedent indicate that a lesser
standard for military commissions would not be
constitutionally permissible. In this regard, Winthrop stated:
“Military commissions. . . are commonly conducted
according to the rule and forms governing courts-martial...
[T]heir proceedings...will not be rendered illegal by the
omission of details required upon trials by courts-
martial....But, as a general rule, and as the only safe and
satisfactory course for the rendering of justice to both parties,
a military commission will-like a court-martial--permit and
pass upon objections interposed to members. . . will formally
arraign the prisoner, allow the attendance of counsel,
~13b-
entertain special pleas. . . receive all material evidence...hear
argument, find and sentence after adequate deliberation,
render to the convening authority a fully authenticated record
of its proceedings, and...be governed. . . by established rules
of and principles of law and evidence.”
Winthrop, Military Law and Precedents. 1920, at 843.
For a similar analysis see Weiner, A Practical Manuel of
Military Law, 1940, at 122. Congress has not established any
procedures which are specifically made applicable to military
commissions, but Article 21 Uniform Code of Military
Justice (10 U.S.C. 821), which grants military commissions
concurrent jurisdiction with courts-martial, can be considered
as a congressional approval of the long established practice
of tailoring commissions to fit the procedures used in courts-
martial. This position is buttressed by the fact that Congress
directed the President to establish procedures for courts-
martial or other military tribunals which follow, to the extent
practicable, the principles of law and the rules of evidence
generally followed in United States district courts. Article 36
UCMJ, 10 U.S.C. § 836. It did not indicate that separate
procedures for military commissions were either needed or
desired.
In Re Yamashita, 327 U.S. 1 (1946), could however, be
cited for the proposition that the due process clause of the
Fifth Amendment is not applicable to military commissions.
In that case, the-majority stated that “Congress by
sanctioning trials of enemy aliens by military commission for
offenses against the law of war had recognized the right of
the accused to make a defence” 327 U.S. at 9. The court
refused to consider what else the Fifth Amendment might
require, and it held that a number of statutory safeguards set
forth in the Articles of War were not applicable even though
they would have been controlling in a trial by court-martial.
But Justice Murphy in a strong dissent, stated that “the
failure of the military commission to obey the dictates of the
due process requirements of the Fifth Amendment is apparent
-14b-
in this case.” 327 U.S. at 27. His view would seem to present
the better reasoned approach, particularly in view of the
expanded scope which the Supreme Court has given over the
past decade to those fundamental rights which the due
process clause guarantees to all criminal defendants.
Furthermore, due process has been‘ judicially defined as
encompassing those fundamental principles of liberty,
justice, and fairness which lie at the base of all of our civil
and political institutions, and this concept demands that
criminal liability be adjudicated by trial rather than
inquisition. See, e.g., Palko v. Connecticut, 302 U.S. 319
(1937). Although the minimal requirements for the
procedures which the trial must follow will depend on what
the courts have determined to be essential elements of
fundamental fairness, the procedures adopted should provide
every safeguard which an accused would be entitled to in a
court-martial or a Federal district court. This position would
enhance the likelihood of overcoming a defendant's
objections that the commission lacked jurisdiction, and it
would further the Government's obligation to prosecute
persons who offend the law of war without detracting from
its equally important responsibility of conducting criminal
trials consonant with the protections of the Bill of Rights.
B. Counsel; who prosecutes, defends
It is now settled that the Sixth Amendment's guarantee of
counsel is one of the provisions of the Bill of Rights which is
fundamental and essential to a fair trial. Gideon vy.
Wainwright, 372 U.S. 335 (1.963). Of course, due process
also dictates that a defendant be allowed the assistance of Is
own attorney. Chandler v. Fretag, 3418 U.S. 3 (1954);
Ferguson v. Georgia, 365 U.S. 570 (1961); Pewell v.
Alabama, 287 U.S. 45 (1932). Accordingly, all defendants in
Federal district court are entitled to be represented by counsel
of their choice if such counsel are admitted 12 practice before
that particular court (there is no uniform Tule governing the
-15b-
procedure by which practitioners may be admitted for a
single case, but it is generally accomplished by a pro-forma
motion), and all indigent defendants are entitled to free
counsel appointed by the court. Rule 44, Federal Rules of
Criminal Procedure. Defendants before a general court-
martial fare even better as they are entitled to be represented
by any counsel of their choice who is a member of the bar of
a Federal court or the highest court of a State, and they are
also entitled to a free appointed counsel whether or not they
are indigent. Article 27(b), Uniform Code of Military Justice
(10 U.S.C. 827).
The Constitution would thus, require that counsel be
provided for any indigent tried by a military commission, and
that all defendants be allowed to select counsel at their own
expense from the ranks of any State or Federal bar. Although
not required, it would probably be wise to provide free
appointed counsel for all defendants whether or not they
were indigent as a failure to do so would discriminate
between those tried by court-martial and others tried by
commission. It night also open the door to charges that we
treat war prisoners more favorably than our own people, as
the 1949 Geneva Prisoners' Convention provided that all
prisoners of war tried by the host country arc entitled to free
counsel. Furthermore, providing free counsel for all
defendants, indigent or otherwise, seems to have been the
practice which was followed in the past. See Weiner, supra,
at 842. But see Vallandigham Trial and Habeas Corpus,
1863, for report of a civil war case where defendant
represented himself in a case which was prosecuted by a JAG
officer, See the Trial of Henry Wirz, \867, for a trial by
military commission where the accused was defended by
counsel of his choice,
Thus, President Roosevelt appointed two judge advocate
officers to defend Quirin (one of the German saboteurs tried
by military commission in 1942) and he appointed the
Attorney General and The Judge Advocate General to handle
—16b-—
the prosecution. Jn the Yamashita case, supra, the prosecution
was not quite as formidable (General McArthur directed the
convening authority to proceed with the trial and it is
assumed that a JAG officer handled the prosecution) but
General Yamashita was defended by no less than six JAG
officers whose defense effort was praised by the Supreme
Court. Jn Re Yamashita, 327 U.S. at 5.
There does not seem to be any limitations on who may be
appointed for the defense or prosecution other than the
obvious limitations that the men selected should be qualified
trial attorneys and should not have any conflicting interests.
Of course, the nature of the proceedings and precedent would
indicate that at least some of the men appointed for both the
prosecution and the defense should be members of the
military.
C. Power to subpoena witnesses
Article 46, Uniform Code of Military Justice (10 U.S.C.
846) provides in substance that the power of courts-martial to
compel the attendance of witnesses and the production of
other evidence shall be similar to that of Federal district
courts, and shall run to any part of the United States,
territories, commonwealths, and possessions. Although
Article 46 addresses itself only to the power of the courts-
martial to issue subpoenas, Article 47 (10 U.S.C. 847)
provides a criminal sanction for any person who fails to
appear, after being subpoenaed to appear, as a witness before
a “court-martial, military commission, court of inquiry, or
any other military court or board... i. (emphasis
supplied). It thus appears that military commissions may
compel the attendance of witnesses and the production of
other evidence, But the legislative history of the Code is
silent as to why Congress chose to define the limits to which
court-martial process may run without also defining the
limits of process issued by other military tribunals. The
geographic limits of process issued by a military commission
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are, accordingly, a matter open to speculation. Of course,
Article forty-seven's parity treatment of military
commissions and courts-martial lends great weight to the
proposition that the process of military commissions is at
least equal to and concurrent with that of courts-martial. It
can also be argued that process in the instant case would run
world wide as an inherent attribute of the fact that the crime
to be tried is an offense against the law of nations--an offense
without territorial! limitation--and the fact that the convening
authority's “field of command” extends world wide. If
Congress has provided the convening authority with the
responsibility for prosecuting these offenses, it must have
also intended to provide him with the means of
accomplishing the task.
D. Granting of immunity
Although a convening authority may not have an inherent
power to grant immunity from prosecution for offenses
committed against the United States, United States v. Ford,
99 U.S. 593 {1879), the power to grant immunity may be
authorized by statute. Brown v. Walker, 161 U.S. 591 (1896).
The Uniform Code of Military Justice has been construed as
empowering general court-martial convening authorities to
grant immunity from prosecution with respect to an offense
cognizable in military law. United States v Kirsch, 15
USCMA 84, 35 CMR 56 (1964). The court in Kirsch
reasoned that Congress had provided: that it was to be within
the discretion of proper authorities as to whether charges
would be referred to a military tribunal; that the President
could provide rules of evidence and procedure for military
tribunals; and that the decision to refer or not to refer charges
to trial was a matter which could be regulated by procedures
established by the President. It, therefore, interpreted the
provisions of the Manual for courts-martial which established
a convincing authority’s right to remove a case from trial as a
lawfully established means of granting immunity. The case
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also held that a convening authority's grant of immunity was
coextensive with the accused’s Fifth Amendment right
against self-incrimination and that it would bar a prosecution
in a civilian court. 15 USCMA at 97, 35 CMR at 69, citing
Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). The
current Manual provision is based on this case anted it
provides in pertinent part that “an authority competent to
order a person's trial by general court-martial may grant or
promise him immunity from trial,” Although it could be
argued that the foregoing provision is by its terms applicable
only to trial by court-martial, it should be noted that the
offenses in the instant case could also have been tried by
court-martial and that the Secretary of the Army (or other
‘convening authority) is competent to convene a general
court-martial. Furthermore, the President could delegate the
power to grant immunity to the convening authority in the
Executive Order establishing the military commission and
that action could be sustained, using the rationale of Kirsch,
as an exercise of the power delegated to him by Congress to
establish rules of evidence and procedure for military
commissions. It might also be sustained as a proper
invocation of the President's constitutional power to grant
pardons.
E. Rules of evidence
Congress has provided that the President shall prescribe
rules of evidence for trial of cases by court-martial or
military commission and that these rules should, as far as
practicable, conform with the rules of evidence generally
recognized in the trial of criminal cases in Federal district
courts. Article 36, UCMJ (10 U.S.C. 836), The President has
established detailed rules of evidence for courts-martial and
he has provided that military commissions will be guided by
these rules. Paragraphs 2, 137, MCM, 1969 (Rev.). Although
President Roosevelt directed that the military commissions
which tried General Yamashita and Mr. Quirin could admit
—19b-
such evidence as was probative in the mind of a reasonable
man, it would be difficult to argue that hearsay or other
arguable probative but objectionable evidence would be
permissible by “practicality.” Furthermore, the right to
confront witnesses is clearly fundamental to a fair trial, and it
is thus fairly clear that the hearsay rule (which exists
primarily to safeguard the right of confrontation) is a right
guaranteed by due process and thus required in a trial by
military commission irrespective of whether it is regarded as
a practical rule by the President. In any event, the most
expeditious and fair solution available would be to have the
President exercise his congressional! grant of authority (Art
36, UCM) by stating in the Executive Order establishing
the commission that the rules of evidence are set out in the
Manual shall govern. A further caveat could be added that
the Manual would not apply if 2 rule more favorable to the
accused were being followed im criminal prosecutions in
Federal district courts, but this might cause needless
confusion as the rules of evidence which are followed in
Federal! district court may not be uniform as they depend on
the law of the circuit in which the Federal district court is
located.
F. Limitations on sentencing power
Congress has provided that the punishment which is a
general court-martial may adjudge for an offence punishable
by the Code must be consonant with limits set by the Code or
by the President for that offense. Articles 18, 56, Uniform
Code of Military Justice (10 U.S.C, 818, 856). Congress and
the President have provided that the minimum punishment
for premeditated or felony-murder is life imprisonment.
Paragraph 127c, MCM, 1969 (Rev.); Article 118, Uniform
Code of Military Justice (10 U.S.C. 918). But Congress also
has stated that a general court-martial has jurisdiction to try
any person who by the law of war is subject to trial by a
military tribunal and the court may adjudge any punishment
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permitted by the law of war. Article 18, Uniform Code of
Military Justice 10 U.S.C. § 818). There is no reference to a
Presidentia! limitation on the sentencing power for offenses
against the law of war. Since a military commission's
jurisdiction is coextensive with that of a general court-martial
(Article 21), and Congress has not established a fixed
punishment for atrocities which are punishable by the law of
war, it may he concluded that a military commission could
impose any punishment authorized by the law of war
notwithstanding Presidential limitations concerning similar
offenses under the Code. Of course, it may be argued that the
convening authority has a right to limit the punishment which
may be adjudged as in inherent aspect of his power to create
the commission. Another basis for such power is that the
convening authority of a general court-martial need only
approve any part or amount of the sentence which is
adjudged. Article 64, UCMJ (10 U.S.C. 864).
Furthermore, the Articles of War in effect when Mr.
Quirin and General Yamashita were tried could also be
interpreted (although not as readily) as meaning that a
military commission could impose any punishment
authorized by the law of war without restriction, but an order
which established the commission which tried General
Yamashita provided that the convening authority could alter
the sentence and that a death sentence had to be approved by
General McArthur, the convening authority's superior. The
order, otherwise allowed the commission to impose any
sentence authorized by the law of war. The Executive Order
which convened the commission which tried Mr. Quirin and
the other German saboteurs provided only that a concurrence
of two-thirds of the commission was needed for a conviction
and that the record of trial would be directed to the President
for his action thereon. A military order signed by President
Roosevelt on 11 January 1945 providing for the
establishment of military commissions to try saboteurs also
provided that a two-thirds vote would be required, but it too
-21b-
failed to set out limits of punishment. 1945 Supp CPR 170.
In this regard, Congress has provided that in trials by court-
martial a unanimous vote is required for a death sentence, a
three-fourths vote for a sentence to confinement for more
than 10 years, and a two-thirds vote for all other sentences.
Article 52, Uniform Code of Military Justice (10 U.S.C.
852). Article of War 43, in effect during the Yamashita and
Quirin trials, also required a unanimous vote for a death
sentence, but it specifically mentioned sentences by court-
martial and it did not refer to sentences by other types of
military tribunals. Article 52 of the Uniform Code also refers
to questions to be decided by courts-martial, and it might
thus be contended that the limitations of Article 52 do not
apply to trial by military commissions. This would leave the
convening authority free to establish any voting requirement.
Of course, sentencing in Federal district court is done by the
judge and this alternative might be made part of the oder
convening the commission if Article 52 is determined to be
inapplicable.
It may be concluded that e military commission may
impose any punishment which is authorized by the law of
war. It would seem clear that a death sentence or life
imprisonment could be imposed for persons convicted of
mass murders as these punishments are in accord with
customary law of war for serious cases of unlawful
belligerency. Ex parte Quirin, supra, Wirz, supra. The
President or convening authority probably has the power to
set a maximum sentence which the commission may impose,
and the convening authority can probably set any voting
requirement, but these points are not free from doubt.
Accordingly, the most prudent approach would be to have the
Executive Order establishing the commission provide that the
commission may impose any sentence which is authorized by
the law of war and that the vote required should conform
with the Article 52 requirements for courts-martial. The
danger of an excessive punishment could be alleviated
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through review procedures and provision that the
commission be guided by the maximum punishments for
analogous offenses under the Uniform Code.
VI. Review
A. Use of the Regular Military Review System
The review procedures set forth in the Uniform Code,
like their antecedents in the Articles of War, arc by their
terms applicable only to court-martial cases. The review
procedures of the Articles of War were, nonetheless, held to
be usable with respect to cases tried by military commission.
See Weiner at 112; Winthrop at 846; Dig. Op. J.A.G., 1912,
p. 1070. Accordingly, President Roosevelt in an Executive
Order of 11 January 1945 provided that record of trial by
military commission would be reviewed in accordance with
Article of War 50%, the predecessor of Article 66 of the
Uniform Code. Although Article of War 50% provided for
review of certain cases by a board of review, the functions of
those boards were somewhat different from practice under
the Code, and these differences may be pertinent in
considering whether precedent under the Articles of War is
still valid.
One prisoner convicted by a military commission
convened pur~suant to the 11 January 1945 order collaterally
attacked his conviction, alleging that the commission had
lacked jurisdiction to proceed against him. Denial of the
petition was affirmed by the Court of Appeals, but the court
did not discuss the efficacy of the review procedures used
after conviction. Colepaugh v. Looney, 235 F. 2d 429 (10
Cir. 1956).
The review procedures required for court-martial cases
tried under the Articles of War were not, however, adopted in
either the Quirin or the Yamashita case. \n Quirin the
~23b-
Executive Order that convened the commission provided
only that the record would be transmitted diretly to the
President for his action. Except for an unsuccessful collateral
attack, Ex parte Quirin 317 U.S. 1 (1942), review by the
convening authority was the extent of appellate review
afforded these accused. The record of General Yamashita’s
trial was directly reviewed by the convening authority, but a
provision in the order authorizing trial provided for
additional review by the convening authority’s superior in the
event that a sentence of death was adjudged. The concept of
limiting review to the convening authority is further
discussed in part C., post.
It has been held that both the Court of Military Appeals
and the U.S. Army Court of Military Appeals and the U. S.
Army Court of Military Review are “courts” of the United
States competent to issue all writs and orders necessary in aid
of their jurisdiction. United States v. Frischholz, 16 USCMA
150, 36 CMR 306 (1966); United States v. Draughhon, —__
CMR ___ (ABR 1970) The judicial power granted these
tribunals by Congress is limited, however, to the review of
court-martial cases under the ternis of Articles 66 and 67 if
the Uniform Code,10 U.S.C. §§ 866 and 867, and therefore
actions by military authority not involving “proceedings
before a court- martial” are beyond the scope of review of the
Court of Military Appeals and, perforce, the U.S. Army
Court of Military Review Mueller v. Brown, 18 USCMA
534, 40 CMR 246 (1969).
In view of the limitations of the jurisdiction of the regular
military appellate tribunals, it would not appear possible to
provide that the findings and sentence of a conviction by
military commission will be reviewed pursuant to Articles 66
and 67 of the Code; neither court could act in its limits
imposed upon it by Congress.
The review provided by Article of War 50 2, which was
used in some cases of trial by military commission, differed
~24b-
from that now provided in. Articles 66 and 67 of the
Uniform Code in several respects. Although both the Articles
of War and Article 66 of the Code (prior to enactment of the
Military Justice Act of 19G8) authorized creation of boards
of review to be manned by persons selected by The Judge
Advocate General, practice under the Articles of War did not
contemplate that boards of review would provide more than
recommendations. Boards of review under the Articles of
War did not purport to dispose of cases by their own action;
action by The Judge Advocate General or the President was
necessary to implement the conclusions of the boards. There
was no statutory provision in the Articles of War assuring the
independence of board members in their judicial capacity. In
short, those boards of review had few, if any, of the powers
and trappings that distinguish a court. Such status contrasts
with the status of the current appellate agencies, especially
since the Military Justice Act and its denomination of boards
of review as Courts of Military Review. It is unlikely that a
Court of Military Review would acquiesce to an argument
that it could be assigned duties beyond those of the statute
that created it.
It should be noted; however that it is the court, and not its
members, which has its functions limited by statute. It is not
unprecedented for judicial officers to be asked to serve in
some other official capacity on a pro hac basis. For example,
Mr. Justice Jackson was detailedto prosecute some of the
German war criminals at the Nuremberg Trials after World
War. Il, and Chief Justice Warren assented co lead a
commission which inquired into the assassination of
President Kennedy. Inasmuch as members of the L.S. Army
Court of Military Review are military officers subject to
assignment by The Judge Advocate General, there would not
appear to be any problems in having the record of trial by.
military commission reviewed by members of the Court of
Military Review, acting in their individual capacities and not
~25b-
as the court established by Congress in Article 66 of the
Uniform Code.
B. Special Review System.
Having concluded chat the jurisdiction of the U.S. Army
Court of Military Review and the Court of Military Appeals
is limited to court-martial cases, it appears that some other
provision must be made for review of convictions by military
commission. One method would be to create a system of
review chat approximates as closely as possible that used for
court-martial cases.
The only statutory material describing review of military
commissions is 10 U.S.C. § 3037(c)(3), which, requires The
Judge Advocate General to “receive, revise and have
recorded the proceedings of .., military commissions.” The
Judge Advocate General’s functions have, in this context,
been considered chiefly ministerial and advisory, with the
term “revise” imposing only a duty to assure that the record
is in proper form and not providing the authority to reverse a
decision. See Ex parte Mason, 256 Fed. 384 (C.C.A. N.Y.
1882).
Once The Judge Advocate General has, in accordance
with his statutory duty, received and perused the record, it
could be transmitted to members of the U.S. Army Court of
Military Review (or a panel of that court) to be reviewed as
would have been a court-martial case. If this procedure is
adopted, it should be specified that the powers of the
reviewing panel be similar with respect to action on findings
and sentence to those exercised by the Court of Military
Review in court-martial cases, lest resort to the military
commission appear to have resulted in fewer safeguards for
the accused than would have been present had the case been
referred to trial by court-martial
There does not appear to be any way that the record of
trial by military commission could be reviewed by the Court
~26b-
of Military Appeals or its judges. Unlike the appellate
military judges which constitute the U.S. Army Court of
Military Review, the judges of the Court of Military Appeals
have no military status and are not assigned by The Judge
Advocate General.
It should be noted that, in view of the seniority of the
convening authority proposed (I A, above), review by a panel
of appellate military judges should precede action by the
convening authority. Such a sequence would permit the
convening authority to take final action on the record after
review by the appellate military judges without having
prejudged the merits of any issues presented by the record.
C. Review by Convening Authority Alone
Although founded on precedent, limitation of review to
the convening authority would present several disadvantages
and might well sufiice alone to make any convictions
amenable to collateral attack. See Burns v, Wilson, 346 U.S.
137 (1953). Proper review by the convening authority alone,
even with the advice and recommendations of The Judge
Advocate General would require personal scrutiny of the
entirety of what might be a voluminous record. Limitation of
review to the individual who initially exercised prosecutorial
discretion by referring the charges to trial would be an
extreme departure from ‘the safeguards enjoyed by accused
before general courts-martial, and, indeed, would provide
fewer protections than those granted accused before special
and summary courts-martial, which must always be reviewed
by an authority superior to the convening authority. For these
reasons review by the convening authority alone does not
lend itself to adoption, let alone serious consideration, let
alone serious consideration.
-27b-
VII. Execution of Sentences
Conceptually, if the military commission has Jurisdiction
to proceed against an accused, it must also have the power to
invoke that jurisdiction to its logical conclusion. Article 58 of
the Uniform Code specifically alludes to courts-martial and
“other military tribunal(s) when it provides that sentences to
confinement may be executed in any penal institution under
the control of the United State;. Article 58, Uniform Code of
Military Justice, 10 US.C. § 858. Other provisions
concerning sentences are, however, limited by their terms to
court-martial cases and do not embrace the “other military
tribunals” which might adjudge sentences. See Articles 58a,
71, 76, Uniform Code of Military Justice, 10 U.S.C. 88 856a,
871, 876.
The touchstone of the sentencing power is the question of
jurisdiction, however, and if jurisdiction is found the
execution of any sentence permitted by the law of war is
authorized by virtue of the judgment of the commission
itself. If it is lawful, that judgment provides the executive
with the authority to execute the sentence adjudged
notwithstanding the paucity of specific legislative enactments
concerning the methods by which such sentences are to be
executed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.