Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions

Congressional research reportDec 11, 2001

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Order Code RL31191

CRS Report for Congress

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Terrorism and the Law of War: Trying Terrorists

as War Criminals before Military Commissions

Updated December 11, 2001

Jennifer Elsea

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Terrorism and the Law of War: Trying Terrorists as

War Criminals before Military Commissions

Summary

On November 13, 2001, President Bush signed a Military Order pertaining to

the detention, treatment, and trial of certain non-citizens as part of the war against

terrorism. The order makes clear that the President views the crisis that began on the

morning of September 11 as an attack “on a scale that has created a state of armed

conflict that requires the use of the United States Armed Forces.” The order finds

that the effective conduct of military operations and prevention of military attacks

make it necessary to detain certain non-citizens and if necessary, to try them “for

violations of the laws of war and other applicable laws by military tribunals.”

The unprecedented nature of the September attacks and the magnitude of

damage and loss of life they caused have led a number of officials and commentators

to assert that the acts are not just criminal acts, they are “acts of war.” The

President’s Military Order makes it apparent that he plans to treat the attacks as acts

of war rather than criminal acts. The distinction may have more than rhetorical

significance. Treating the attacks as violations of the international law of war could

allow the United States to prosecute those responsible as war criminals, trying them

by special military commission rather than in federal court.

The purpose of this report is to identify some of the legal and practical

implications of treating the terrorist acts as war crimes and of applying the law of war

rather than criminal statutes to prosecute the alleged perpetrators. The report will

first present an outline of the sources and principles of the law of war, including a

discussion of whether and how it might apply to the current terrorist crisis. A brief

explanation of the background issues and arguments surrounding the use of military

commissions will follow. The report will then explore the legal bases and

implications of applying the law of war under United States law, summarize

precedent for its application by military commissions, and provide an analysis of the

President’s Military Order of November 13, 2001. Finally, the report discusses

considerations for establishing rules of procedure and evidence that comport with

international standards.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ancillary Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Sources and Principles of the Law of War . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Military Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Chivalry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Protection of Civilians and Prisoners of War . . . . . . . . . . . . . . . . . . . . 8

The Law of War Applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Is There an “Armed Conflict”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Are the September Attacks “Acts of War”? . . . . . . . . . . . . . . . . . . . . 13

Are Terrorists “Belligerents”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Legal Bases for Establishing Military Commission . . . . . . . . . . . . . . . . . . . 16

The Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

War with Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Civil War Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Other Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

World War I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Other Rulings on Military Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Analysis of President’s Military Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wartime Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Offenses Triable by Military Commission . . . . . . . . . . . . . . . . . . . . . . 29

Authority to Detain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jurisdiction of Other Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Review and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Rules Applicable to the Military Commission . . . . . . . . . . . . . . . . . . . . . . . 34

Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Procedural Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Due Process – Search for an International Standard . . . . . . . . . . . . . . 37

Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Military Order of November 13, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . 41

Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Proclamation No. 2561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Military Order of July 2, 1942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Military Order of January 11, 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Terrorism and the Law of War:

Trying Terrorists as War Criminals

before Military Commissions

Introduction1

On November 13, 2001, President Bush signed a Military Order pertaining to

the detention, treatment, and trial of certain non-citizens as part of the war against

terrorism. The order makes clear that the President views the crisis that began on the

morning of September 11 as an attack “on a scale that has created a state of armed

conflict that requires the use of the United States Armed Forces.”2 The order finds

that the effective conduct of military operations and prevention of military attacks

make it necessary to detain certain non-citizens and if necessary, to try them “for

violations of the laws of war and other applicable laws by military tribunals.”3

The September 11 attacks clearly violated numerous laws4 and may be

prosecuted as criminal acts, as past terrorist acts have been prosecuted in the United

States.5 The unprecedented nature of the September attacks and the magnitude of

damage and loss of life they caused have led a number of officials and commentators

to assert that the acts are not just criminal acts, they are “acts of war.”6 The

President’s Order makes it apparent that he plans to treat the attacks as acts of war

rather than criminal acts. The distinction may have more than rhetorical significance.

Treating the attacks as violations of the international law of war could allow the

This report supersedes Trying Terrorists as War Criminals, RS21056 (Oct. 29, 2001), a

summary treatment of the military tribunal issue prepared prior to the issuance of President

Bush’s Order of November 13.

Military Order, November 13, 2001, Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism, §1(a), 66 Fed. Reg. 57,833 (Nov. 16, 2001). See

Appendix.

Id. § 1(e).

See Terrorism at Home and Abroad: Applicable Federal and State Laws, CRS Report 951050 (updated Sept. 24, 2001).

Sheik Omar Abdel Rahmen was convicted, along with several of his followers, for

seditious conspiracy to levy war against the United States in connection with the 1993

World Trade Center bombing and other plans to commit urban terrorism. See United States

v. Rahman, 189 F.3d 88 (2d Cir. 1999), cert. denied 528 U.S. 1094 (2000). The

perpetrators of the embassy bombings in Africa were prosecuted for murder and other

charges in federal court. See United States v. Bin Laden, 92 F.Supp.2d 189 (S.D.N.Y.

2000).

See Philip Allen Lacovara, Criminal or Military Justice for Captured Terrorists?, 10 N.J.

LAW. 7 ( 2001).

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United States to prosecute those responsible as war criminals, trying them by special

military commission rather than in federal court.

The purpose of this report is to identify some of the legal and practical

implications of treating the terrorist acts as war crimes and of applying the law of war

rather than criminal statutes to prosecute the alleged perpetrators. The report will

first present an outline of the sources and principles of the law of war, including a

discussion of whether and how it might apply to the current terrorist crisis. A brief

explanation of the background issues and arguments surrounding the use of military

commissions will follow. The report will then explore the legal bases and

implications of applying the law of war under United States law and precedent for

its application by military commissions. The report will conclude with an analysis of

the President’s Military Order of November 13, 2001.

Background

Some observers have expressed concern that treating terrorist acts as acts of war

may legitimize the acts as a lawful use of force and elevate the status of the

perpetrators and terrorist networks to that of legitimate state actors and lawful

combatants.7 However, it may be argued that an application of the law of war to

terrorism does not imply lawfulness of the conflict, nor does it imply that perpetrators

are not criminals.8 Terrorists are not members of armed forces for the purpose of the

law of war9 and do not, by definition, conduct themselves as lawful combatants.10

Under this view, those who participate directly in unlawful acts of war, including

those with command influence,11 may be treated as war criminals and if captured, are

not entitled to prisoner-of-war (POW) status under the Geneva Conventions.12 As

See LT. COL. RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST

STATE-SPONSORED INTERNATIONAL TERRORISM 63-65 (1989).

See id. (describing arguments against invoking law of war against terrorists); Michael P.

Scharf, Defining Terrorism as the Peace Time Equivalent of War Crimes: A Case of Too

Much Convergence Between International Humanitarian Law and International Criminal

Law?, 7 ILSA J. INT’L & COMP. L. 391 (2001) (arguing that treating terrorists according to

the law of war would enable them to target government facilities, invoke the defense of

obedience to orders, and claim prisoner-of-war status.).

See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 70 (Dieter Fleck, ed.

1995)(hereinafter “HANDBOOK”)(noting that for groups to qualify as “armed forces,” they

must have a responsible command and an internal disciplinary system to ensure members’

compliance with the law of war).

See Spencer J. Crona and Niel A. Richardson, Justice for War Criminals of Invisible

Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV. 349

(1996).

See DOCUMENTS ON THE LAWS OF WAR 19 (Adam Roberts and Richard Guelff, eds.

2000)(hereinafter “DOCUMENTS”)(explaining that the laws of war are applicable and binding

upon individuals who bear direct responsibility for the commission of a crime, including

those who order, induce, or facilitate it).

See ERICKSON, supra note 7, at 79-80.

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suspected war criminals, they may be tried by any nation in its national courts or by

a military commission convened by one nation or many.13

Under the terms of the President’s Military Order of November 13, the

President has the option to order the trial of accused terrorists, whether captured

overseas or on U.S. territory, by military commission. It is argued by some that it

would be unworkable, for instance, to try Osama bin Laden in federal court under

established rules of procedure and evidence. A public trial, some argue, could be

used to the terrorists’ advantage by allowing them to force the government to release

sensitive information. A trial of suspected terrorists could also become an

“international media circus,” raising possible concerns for the safety of judge and

jurors.14 Such a trial could be lengthy and subject to multiple appeals, during which

a conviction could be overturned on a technicality. It might be impossible to

empanel an impartial jury anywhere within the United States, some observers have

argued.

Observers have expressed concern that invoking the law of war against terrorists

in this instance could lead to the use of a similar approach to combat other societal

ills upon which rhetorical “wars” might be declared.15 This tactic, they argue, could

allow the government to establish military tribunals to try drug dealers, for example,

without ordinary due process of law. Other opponents of using military commissions

argue that secret trials could deny due process and that the resulting verdicts would

lack legitimacy in the eyes of the international community.

A review of legal precedents indicates that the authority of the Commander in

Chief to try war criminals in occupied territory is well settled. Similarly, there is

substantial precedent for establishing military tribunals to try enemy belligerents who

are charged with violating the law of war, especially individuals captured overseas.16

Determining who qualifies as an “enemy belligerent” for acts committed on U.S.

territory, however, would likely present greater constitutional difficulties.17 The

See Adam Roberts, Implementation of the Laws of War in Late-Twentieth-Century

Conflicts, in THE LAW OF ARMED CONFLICT INTO THE NEXT MILLENNIUM 359, 365 (Schmitt

and Green, eds. 1998)(noting that while international tribunals for enforcing the law of war

have received more attention, the overwhelming number of trials have occurred at the

national level).

See Louis Jacobson and Gia Fenoglio, How Would They Be Tried? 33 NAT’L J. 3350

(Oct. 27, 2001).

See Daniel M. Filler, Values We can Afford – Protecting Constitutional Rights in an Age

of Terrorism: An Answer to Crona and Richardson, 21 OKLA. CITY U.L. REV. 409, 419-20

(1999).

Military jurisdiction in occupied areas is well established, even for ordinary crimes, as

a power necessary for military government. See In re Yamashita, 327 U.S. 1 (1946). The

commander also has the option of detaining offenders until they can be delivered to civil

authorities for trial. See Gallagher v. United States, 423 F.2d 1371 (Ct. Cl. 1970).

See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (granting writ of habeas corpus to

civilian convicted by military commission for criminal offenses and violations of the law

of war where federal courts were available and defendant was not affiliated with enemy

(continued...)

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President’s order appears to be broader than the authority cited by previous

Presidents, and may cover aliens in the United States legally who are citizens of

countries with which the nation is at peace. It may also be seen as conflicting with

certain acts of Congress.

Ancillary Issues.

The President’s order raises some possible related considerations. For example,

section 1(d) of the order finds that the United States’ ability to protect itself and its

citizens depends upon using the United States Armed Forces to “identify terrorists

and those who support them, to disrupt their activities and to eliminate their ability

to conduct or support such attacks.” Does this finding authorize the military police

to investigate certain crimes, possibly implicating the Posse Comitatus Act, which

restricts use of the military to enforce civilian law?18 When civilian police are

involved in terrorism investigations, must they follow the same standards that they

apply to criminal cases? The use of military tribunals may also affect the United

States’ ability to extradite terrorist suspects captured abroad.

The order may also affect the rights and treatment of aliens. Because the

current state of hostilities does not involve an enemy foreign state as such, the status

of an alien as an “enemy alien” cannot be determined according to citizenship.19 The

question may arise as to whether aliens subject to the order may be treated as enemy

aliens, in which case the law of war may permit their internment but would also

entitle them to the protections of the 1949 Geneva Convention IV.20 Under U.S. law,

their detention may be authorizable only in accordance with the Enemy Alien Act.21

Such an approach could also have an impact on available remedies for victims.

Will there be any effect on the possible civil liability of terrorists to compensate

victims?22 Would it matter if a particular victim was a government employee or

(...continued)

armed forces).

18 U.S.C. § 1853. See The Posse Comitatus Act & Related Matters: The Use of the

Military to Execute Civilian Law, CRS Report 95-964 S (updated June 1, 2000).

See 50 U.S.C. § 21 (defining “enemy” as all natives, citizens, denizens, or subjects of the

hostile nation or government, being of the age of fourteen years and upward, who shall be

within the United States and not actually naturalized”).

See HANDBOOK, supra note 9, at 41 (citing Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75

U.N.T.S. 287)(GC IV). Enemy aliens in the territory of a party to the conflict who are

charged with offenses must be treated in accordance with GC IV art. 76, which provides for

conditions of detention at least equal to those of normal imprisonment, sanitary conditions

and proper medical attention, and detainees have the right to maintain contact with the

outside world. See HANDBOOK, supra note 9, at 278 and 284.

50 U.S.C. § 21.

Civil actions brought under 18 U.S.C. §2333 (terrorism remedies) may not be maintained

for acts of war. 18 U.S.C. §2335. Defendants convicted under criminal proceedings are

(continued...)

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someone located at a “military target” at the time of an attack? Will there be an

effect on the liability of insurers?23 A decision to adopt a law of war approach to the

terrorist acts currently at issue, or to future acts of international terror, could also

have significant foreign policy repercussions.

Sources and Principles of the Law of War

As a subset of the law of nations, the law of war is a composite of many sources

and is subject to varying interpretations constantly adjusting to address new

technology and the changing nature of war.24 It may also be referred to as jus in

bello, or law in war, which refers to the conduct of combatants in armed conflict, as

distinguished from jus ad bellum – law before war – which outlines acceptable

reasons for nations to engage in armed conflict.25 The rules overlap somewhat but

remain conceptually separate due to the cardinal principle that jus in bello applies to

both parties in a conflict, without regard to the lawfulness of the inception of the

conflict.26 In other words, the party “at fault” retains the rights and responsibilities

of the law of war, even if the armed conflict itself is unjustifiable under international

law.

The law of war is also sometimes known as the “law of armed conflict” or

“international humanitarian law” (IHL).27 The use of the terminology “armed

conflict” reflects the applicability of the law to undeclared wars, in recognition of the

reality that formal declarations of war may be largely a thing of the past. The term

IHL is favored by some to emphasize the humanitarian purpose of the law, that is, to

protect civilians to the extent possible in the event jus ad bellum fails to prevent an

armed conflict.

(...continued)

estopped from denying responsibility in any subsequent civil suit. 18 U.S.C. §2333(b).

Under current law, it is unclear whether a conviction by military commission could be

invoked in this way.

See Insurance Exclusion Clauses and Coverage of the Events of September 11, CRS

Report RL31166 (Oct. 20, 2001).

See DOCUMENTS, supra note 11, at 2; Georgios Petrochilos, The Relevance of the

Concepts of War and Armed Conflict to the Law of Neutrality, 31 VAND. J. TRANSNAT’L L.

575, 577-78 (1998)(commenting on changes to law of war).

See DOCUMENTS, supra note11, at 1-2.

See id. at 1; CIVILIANS IN WAR (Simon Chesterman ed., 2001) 15-16 (explaining that

theories of “just war” were to be kept out of jus in bello in part to make it easier to maintain

legal parity between parties, holding both sides to same rules of conduct).

The reference to humanitarian responsibilities represents a change in focus from the

rights and duties of combatants to an emphasis on belligerents’ responsibility to protect

civilians. See G.I.A.D. Draper, Humanitarianism in the Modern Law of Armed Conflicts, in

ARMED CONFLICT AND THE NEW LAW (Michael A. Meyer, ed. 1989).

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Sources.

Sources of the law of war include customary principles and rules of international

law, international agreements, judicial decisions by both national and international

tribunals, national manuals of military law, scholarly treatises, and resolutions of

various international bodies.28 Customary principles of international law apply

universally.29 Treaties bind only those parties to them, unless they are seen to codify

jus cogens principles, that is, have attained the common acceptance of nations. The

other sources are generally treated not as binding sources of law, but rather as

evidence that rules and principles have attained the common acceptance of nations

to qualify as jus cogens norms.

The first attempt to codify the law of war is generally accepted to be the first

Geneva Convention of 1864.30 The process continued with the Hague Conventions

of 1899 and 1907 (also known as the “Law of The Hague”)31 and when the Geneva

Convention was revised and expanded into the four Geneva Conventions of 1949.32

The process has continued through the adoption of the additional protocols in 1977,

and augmented with related treaties such as the Genocide Convention.

The United States Army Field Manual (FM) 27-10, The Law of Land Warfare,

codifies the Army’s interpretation of the law of war, incorporating reference to

relevant conventions and rules of the customary law of war, as well as relevant

statutes.33

See DOCUMENTS, supra note 11, at 4 (enumerating sources of international law of war).

See id. at 7-8.

See Bartram S. Brown, Nationality and Internationality in International Humanitarian

Law, 34 STAN. J INT’L L. 347, 352 (1998) (citing Convention for the Amelioration of the

Condition of the Wounded Armies in the Field, signed at Geneva, Aug. 22, 1864, 129

CONSOL. T.S. 361.).

Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,

1907, 36 Stat. 2277, 205 Consol. T.S. 277 (hereinafter “Hague Regulation” or “HR”).

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, August 12, 1949 , 6 U.S.T. 3115; Geneva Convention for the

Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed

Forces at Sea, August 12, 1949, 6 U.S.T. 3219; The Geneva Convention Relative to the

Treatment of Prisoners of War, August 12, 1949, Int’l Comm. of the Red Cross, art. 118, 6

U.S.T. 3317 (hereinafter GC III); Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, August 12, 1949, Int’l Comm. of the Red Cross, art. 6, 6 U.S.T.

3516 (hereinafter GC IV).

See Department of the Army, FM 27-10, The Law of Land Warfare, chapter 1, § 1 (1956)

(listing treaties pertinent to land warfare to which the United States is a party).

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Principles.

The main thrust of the law of war requires that a military objective be pursued

in such a way as to avoid needless and disproportionate suffering and damages.34 At

the risk of oversimplifying the concept, three principles derived from the law of war

may be applied to assess the legality of any use of force for political objectives.35

Military Necessity.

The use of force must be proportional in relation to the anticipated military

advantage or as a measure of self-defense. The principle applies to the choice of

targets, weapons and methods. This principle, however, does not apply to unlawful

acts of war.36 There can be no excuse of necessity if the use of arms is not itself

justified. In other words, military necessity can never be invoked to justify a breach

of jus ad bellum, and it may not be invoked to justify a use of arms if there is no valid

military advantage to be gained. However, responsibility for “collateral damage” to

otherwise unlawful targets may sometimes be excused by military necessity.

Humanity.

Lawful combatants are bound to use force discriminately. In other words, they

must limit their targets to valid military objectives and must use means no harsher

than necessary to achieve that objective. They may not use methods designed to

inflict needless suffering, and they may not target civilians. It is also unlawful to

target facilities such as nuclear power plants, whose destruction would unleash even

more destructive forces likely to cause unjustifiable civilian casualties and lasting

environmental damage.37 However, there is an exception if the facilities are used to

support “regular significant and direct military operations,”38 especially if the

facilities can be put out of production in such a way as to avoid unleashing

disproportionately destructive forces.39

Chivalry.

Combatants must adhere to the law of armed conflict in order to be treated as

lawful combatants. They must respect the rights of prisoners of war and captured

civilians, and avoid behavior such as looting and pillaging. They may not conceal

their arms and disguise themselves as non-combatants during battle or preparation

for an attack. While a “ruse” may be permissible to maintain operational secrecy or

See DOCUMENTS, supra note 11, at 9.

See id. (summarizing principles found in military manuals of various nations).

See id. at 10.

Protocol I art. 56(1). See HILAIRE MCCOUBREY, 2 INTERNATIONAL HUMANITARIAN LAW

304 (1998).

Protocol I art. 56(2).

See McCoubrey, supra note 37, at 304.

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obtain information about the enemy,40 “perfidy”– lulling the adversary into believing

there is a situation under which the law of war provides protection – is not allowed.41

An example of perfidious conduct is the waving of a white flag to indicate surrender

in order to ambush combatants. It is also forbidden to “kill or wound treacherously”

enemy individuals.42

Responsibility.

The law of war had its origins when states were considered the only subjects of

international law. Its original purpose was to define the rights and duties of states in

wartime to facilitate the determination of the legal responsibility of states for their

breaches.43 One of the more recent developments of the law of war is the notion of

individual responsibility for conduct in war.44 Each soldier is bound to obey the law

of war even if it means disobeying the direct order of a superior.45 Soldiers who obey

unlawful orders are responsible for the violation along with whoever ordered it.46

Conversely, responsibility for war crimes may not be imposed upon groups of

individuals based on an unlawful act committed by a member of the group.47 The

notion of individual responsibility and justice through individual trials necessarily

excludes the notion of collective guilt.48

Protection of Civilians and Prisoners of War.

Since the 1949 Geneva Conventions, the focus of the law of war has turned

from rules of engagement to the protection of individuals. An individual’s status as

combatant or civilian is important for determining the forms of protection due under

See FM 27-10 § 51.

See id. § 50.

See id. § 31(explaining that the rule prohibits assassination or outlawry of an enemy, but

does not prohibit attack against an individual soldier or officer of the enemy by lawful

means).

See Brown, supra note 30, at 352-53.

See id. at 353 (noting that war crimes are ultimately committed by people, making

individual criminal responsibility important to deter individuals from committing war

crimes).

See BG Malham M. Wakin, Applying Nuremberg Principles to Limited War, 6 USAFA

J. LEG. STUD. 169, 170 (1995 / 1996).

See id. (explaining that the plea of following superior orders is not an adequate defense

to war crimes when the orders are clearly unlawful).

GC IV art. 33 provides:

No protected person may be punished for an offense he or she has not

personally committed. Collective penalties and likewise all measures of

intimidation or of terrorism are prohibited.

See Daniel J. Steinbock, Interpreting the Refugee Definition, 45 UCLA L. REV. 733

(1998)(interpreting various conventions to accord everyone “the right of life, liberty, and

security of person, the right to recognition before the law, and the right to be free of

arbitrary arrest, detention, or execution”).

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international law. Combatants are allowed to wage war but may also be attacked by

the enemy. Civilians may not wage war, but unless and for so long as they directly

participate in hostilities, may not lawfully be attacked.49

POW.

Members of the armed forces who fall into enemy hands during an armed

conflict are protected by GC III and are treated as POWs. They may be interned

under humane treatment as provided by the Convention, but they may not be

punished unless convicted of a crime. If a POW is to be punished for a crime, he

must first be convicted and sentenced by a court “according to the same procedure

as in the case of members of the armed forces of the detaining Power.”50 A POW

may be confined awaiting trial for no longer than three months,51 and no trial can

begin until three weeks after the detaining Power has notified the prisoner’s

representative and the protecting Power of the charges on which the prisoner is to be

tried, where the prisoner is held, and where the trial will take place.52

Civilians.

Civilians who are citizens of a party to an armed conflict and fall into enemy

hands either by residing as aliens in the territory of an opposing party or through

capture by invading or occupying forces, are entitled to treatment in accordance with

GC IV. They, too, may be interned if necessary but may not be punished unless

convicted of a crime by a regular tribunal practicing the generally recognized

principles of regular judicial procedure.53

Civilians who take direct part in the hostilities and fall into the hands of the

adversary are treated as POWs until a competent tribunal determines that they

engaged in unlawful combat.54 A captive may not be prosecuted for unlawful

participation in hostilities unless such a determination has been made.55 Therefore,

even in the case of unlawful belligerents, it would seem the law of war no longer

See L. Doswald-Beck, The Value of the 1977 Geneva Protocols for the Protection of

Civilians, in ARMED CONFLICT AND THE NEW LAW 137, 163 (Michael A. Meyer ed. 1989).

See GC III art. 102; FM 27-10 § 178 (b) provides the following interpretation under the

UCMJ:

Prisoners of war, including those accused of war crimes against whom judicial

proceedings are instituted, are subject to the jurisdiction of United States courtsmartial and military commissions. They are entitled to the same procedural

safeguards accorded to military personnel of the United States who are tried by

courts-martial under the Uniform Code of Military Justice or by other military

tribunals under the laws of war.

See GC III art. 103.

See id. art. 104.

See id. art. 84.

See id. art. 5.

See id.; HANDBOOK, supra note 9, at 92.

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permits trial by military tribunal without ordinary due process merely on the

accusation that a person has engaged in unlawful combat.

Spies and Saboteurs.

Spies and saboteurs do not receive the same protection. A spy is one who, in

disguise or under false pretenses, penetrates into the zone of operations of a

belligerent to obtain information with the intent of communicating that information

to the hostile party.56 If captured, a spy may be tried and executed.57 However, if a

spy rejoins the army of the hostile party as a lawful combatant, he is no longer a spy

and is not subject to punishment for those acts if he later falls into the hands of the

enemy.58 Sending spies behind enemy lines is legal under the law of war.59 Spies are

not punished for criminal culpability so much as they are “deactivated” as a security

measure. However, spies are entitled to a trial in accordance with the detaining

power’s applicable laws before they can be punished.60

Saboteurs, or enemy agents who penetrate into the territory of an adversary

without openly bearing arms in order to perpetrate hostile acts are subject to similar

treatment.61 However, such person is still a “protected person” for the purposes of

the Geneva Conventions,62 and is entitled to a fair and regular trial as prescribed.63

It is unclear whether a saboteur retains the status of unlawful belligerent after

rejoining the lawful forces or whether he becomes a lawful combatant, immune from

punishment for the hostile acts. If sabotage is treated in a similar manner as spying

during war, it may not be possible to characterize all “war criminals” as “unlawful

belligerents” who are not entitled to treatment as POWs.

The Law of War Applied

The purpose of this section is to discuss the issues relative to whether the attacks

of September 11 may be considered “acts of war” under international law, and if so,

how those responsible might be treated under the law of war. The law of war may

be applied only to acts that are part of an “armed conflict.” A terrorist act is not seen

to be an act of war unless it is part of a broader campaign of violence directed against

the state. Where terrorist acts amount to no more than “situations of internal

disturbances and tensions such as riots and isolated and sporadic acts of violence,”

See Hague Regulation art. 29. The U.S. codification of this rule is article 106 of the

UCMJ, codified at 10 U.S.C. § 904. See FM 27-10 §§ 75-78.

See id. art. 30.

See id. art. 31.

See FM 27-10 § 77.

See HANDBOOK, supra note 9, at 99 (citing HR art. 30).

See FM 27-10 § 81 (citing GC III art. 4).

See id. at § 73.

See GC IV art. 5; FM 27-10 § 248.

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the Hague and Geneva Conventions do not apply.64 Instead, peacetime domestic

criminal laws and international conventions aimed at the repression of terrorism

would come into play, obligating states parties to the agreements to try or extradite

those believed responsible.65

Is There an “Armed Conflict”?

Because the terrorist organization allegedly behind the September attacks is not

a state under international law and its members are not uniformed soldiers of any

recognized army, there are conceptual difficulties in fitting their activities into the

rubric of the international law of war.66 There are two recognized types of armed

conflicts – international and internal. An international armed conflict involves two

or more states,67 whereas an internal conflict involves a legitimate state engaged in

conflict with an armed group that has attained international personality.68

The nature of “internal conflicts” remains a matter of some controversy. While

Additional Protocol I to the 1949 Geneva Conventions on the Protection of War

Victims (“Protocol I”)69 sought to extend coverage to non-international conflicts “in

which peoples are fighting against colonial domination and alien occupation and

against racist regimes in the exercise of their right to self-determination,” it is not

clear whether groups fighting for other causes were meant to be covered.70 At any

rate, the United States did not ratify Protocol I, arguing that to recognize as

combatants irregular groups – terrorists – would allow them to “enjoy many of the

benefits of the law of war without fulfilling its duties, and with the confidence that

See Scharf, supra note 8, at 392 (citing quotation of Protocol II art. 1(2)).

See id.

See Ruth Wedgewood, Responding to Terrorism: The Strikes Against bin Laden, 24 YALE

J. INT’L L. 559 (1999) (suggesting “new paradigm” may be necessary to incorporate

terrorism into the legal structure of warfare).

They need not recognize each other. See DOCUMENTS, supra note 11, at 45 (citing

Geneva Conventions).

See, Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force,

18 WIS. INT’L L.J. 145, 183 (2000) (explaining that a group like the Palestinian Liberation

Organization (PLO) is probably sufficiently organized and in sufficient control over territory

and population to be a “quasi-state,” for the purposes of applying the Geneva Conventions).

Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the

Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.

HANDBOOK, supra note 9, at 42.

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the belligerent state has no real remedy under the Protocol to deal with this matter.”71

The use of force by private persons rather than organs of a state has not

traditionally constituted “armed conflict.”72 It has been suggested that the possible

involvement of the governments of foreign states may make international terrorism

an armed conflict for the purposes of the law of war.73 Some have maintained that

state support of terrorism is a violation of international law.74 On the other hand,

some jurists argue that states supporting the acts of third parties are not necessarily

responsible for those acts merely by providing financial, political, or intelligence

support.75 Only direct military support would qualify as an act of war under this

view.76

Viewing the situation pragmatically, it may not matter whether the initial attacks

were perpetrated by state actors or a criminal enterprise. The existence of an armed

conflict is effectively determined by the behavior of sovereign states.77 One

international legal writer has concluded that a “state of generalized hostilities”

accurately characterizes state practice regarding application of the law of war, raising

the issue of the status of non-parties to the conflict as neutrals.78 Under this view, a

factual determination of whether the fighting is persistent enough or of a sufficient

See Abraham Sofaer, The U.S. Decision not to Ratify Protocol I to the Geneva

Conventions on the Protection of War Victims, 82 A.J.I.L. 784, 786 (1988). See George

Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949

Geneva Conventions, 85 A.J.I.L. 1, 6-7 (1991) (arguing that U.S. position mistakenly

presumed that the Protocol would allow terrorists to enjoy POW status); Hans-Peter Gasser,

Some Legal Issues Concerning Ratification of the 1977 Geneva Protocols, in ARMED

CONFLICT AND THE NEW LAW 81, 96 (1989)(arguing that recognizing members of non-state

armed forces would not advance the cause of terrorism).

HANDBOOK, supra note 9, at 42.

See ERICKSON, supra note 7, at 66-67 (arguing that state sponsored or state supported

terrorist organizations may have status under international law, while terrorist organizations

not recognized as international entities might best be dealt with as criminal matters).

See Travalio, supra note 68, at 148 (citing General Assembly Resolutions 2131 that

states have a “duty to refrain from organizing, instigating, assisting, or participating in acts

of civil strife or terrorist acts in another state or acquiescing in organized activities within

its territory...”).

See HANDBOOK, supra note 9, at 50.

See id.; cf Travalio, supra note 68, at 152 (citing Nicaragua v. United States, in which

the International Court of Justice held the activities of the Nicaraguan “contras” could be

attributed to the United States government only if it could be proved that the United States

exercised effective control over the contras “in all fields.” 1986 ICJ Rep. 14 (1986)).

See HANDBOOK, supra note 9, at 41 (noting that states have treated the Geneva

Conventions as applicable even where neither party to the conflict has acknowledged the

existence of a state of war).

See Petrochilos, supra note 24, at 605 (arguing that case-by-case analysis may be

necessary to determine whether “armed conflict” exists).

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magnitude to rise to the level of “armed conflict” in the view of the international

community would suffice to settle the issue.79

The present conflict does not fit squarely within the definitions of internal or

international armed conflicts. The attacks on New York, Pennsylvania, and the

Pentagon do not appear to have been part of an effort to take control of territory or

install a new government, nor is it certain that they were carried out under the

direction of another state. However, the sophisticated planning and execution

believed necessary to have accomplished the attacks suggest that they were carried

out by organized members of a quasi-military force.80 The political and ideological

purpose ostensibly motivating the terrorist attacks arguably distinguishes them from

“ordinary” criminal acts of violence. The magnitude of harm combined with the

threat of more attacks appear to be considered sufficient to give rise to a right of selfdefense, not only in the viewpoint of the United States, but by many other states and

the United Nations.81 If the attacks are viewed as the opening volley to the United

States’ military response in Afghanistan, and the reactions of other nations are taken

into account, an armed conflict in the “factual sense” could be said to exist.

Are the September Attacks “Acts of War”?

The term “act of war” may be defined as “a measure of force which one party,

using military instruments of power, implements against another party in an

international armed conflict.”82 Another definition is a “use of force or other action

by one state against another” which “[t]he state acted against recognizes ... as an act

of war, either by use of retaliatory force or a declaration of war.”83 The September

attacks were not “acts of war” in the traditional sense, because the perpetrators were

not overtly acting on behalf of a state and because they did not employ conventional

military weapons.84 However, the United States’ reaction to the attacks is likely to

See id.

See, e.g., Katherine M. Skiba, Quick Action Against Bin Laden Called Difficult,

MILWAUKEE JOURNAL SENTINEL, Sept. 26, 2001, at 6A (quoting former CIA Director

Stansfield Turner); Holger Jensen, Attacks Beyond Bin Laden’s Power?, ROCKY

MOUNTAIN NEWS (Denver), Sept. 18, 2001, at 4A ( quoting Armed Forces Intelligence, a

British think tank that the sophistication and planning of this operation “simply could not

have been directed from a cave in Afghanistan”); Richard Sisk, The Prime Suspect Is Bin

Laden, DAILY NEWS (New York) Sept. 12, 2001, at 18 (“Intelligence officials and terrorism

experts were stunned at the sophistication and coordination involved in the series of airline

hijackings and suicide crashes in downtown Manhattan and the Pentagon.”).

See S.C. Res. 1373, U.N. SCOR, U.N. Doc. S/Res1373 (2001) (reaffirming the right of

countries to self-defense contained in Article 51 of the U.N. Charter).

See HANDBOOK, supra note 9, at 49.

See JAMES R. FOX, DICTIONARY OF INTERNATIONAL AND COMPARATIVE LAW 6 (1992)

(cited in U.S. v. Shell Oil Co., 841 F.Supp. 962, 972 (C.D.Cal.1993)).

See, e.g. Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989 (2d Cir.

1974)(finding that the hijacking of an airliner by non-state actor was not an act of war for

the purpose of invoking exclusionary clause in insurance policy).

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be of greater significance than the technicalities for the purposes of applying the law

of war.85

Assuming the existence of an armed conflict, it is beyond question that the

September attacks were part of it. Preparation for the attacks would also be covered,

notwithstanding the fact that the hostilities had not yet technically begun.86 Recent

cases of mail containing anthrax spores delivered to government representatives as

well as civilians may also be “acts of war” if they were carried out as part of the same

terrorist campaign.

To label the attacks as “acts of war” does not imply that they are lawful.87

Although the principles of the law of war leave a great deal of room for

interpretation, there can be little doubt, assuming such acts can be viewed as acts of

war, that the attacks of September 11 were not conducted in accordance with the law

of war. Even if one considers the Pentagon to be a valid military target, the hijacking

of a commercial airliner is not a lawful means for attacking it.88 Acts of bioterrorism,

too, violate the law of war, regardless of the nature of the target.89

Are Terrorists “Belligerents”?

Assuming that the attacks may be considered acts of war, and that there is

indeed an ongoing armed conflict, the Hague and Geneva Conventions come into

play to determine the rights and responsibilities of participants, or “belligerents.”

Members of armed forces of a party to the conflict are classified as combatants unless

they belong to a small class of members excluded from participation in combat, such

as medical and religious personnel, who are designated as non-combatants.90 Other

officials may under some circumstances attain combatant status if so designated by

their state.91 All others are considered civilians, who are not ordinarily authorized to

The exact definition is probably more relevant in cases dealing with claims for liability.

See supra notes 22-23.

See Maj. Michael A. Newton, Continuum Crimes: Military Jurisdiction over Foreign

Nationals who Commit International Crimes, 153 MIL. L. REV. 1, 20 (1996) (citing Johnson

v. Eisentrager, 339 U.S. 763, 786 (1950).

See HANDBOOK, supra note 9, at 50 (noting that the term does not have the “same

precision or legal significance which it possessed in the days when states more commonly

declared themselves to be in a formal state of war”).

Hijacking of civilian aircraft is by itself a criminal act under international law. Hague

Convention for the Suppression of Unlawful Seizure of Aircraft, December 16, 1950, 22

UST 1641.

See Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other

Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94

L.N.T.S. 65; Convention on the Prohibition of the Development, Production and Stockpiling

of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Apr. 10, 1972,

26 U.S.T. 583, 1015 U.N.T.S. 163.

See HANDBOOK, supra note 9, at 65.

See id. at 66.

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take part in hostilities.92 If captured, combatants are entitled to POW status and may

not be criminally punished for acts of violence carried out lawfully in their role as

combatants. Civilians who fall into enemy hands, however, may be punished as

criminals for participating in military hostilities, even if that conduct would have

been legal for a combatant.93

A member of an irregular or voluntary military is covered only if he is

commanded by a person responsible for subordinates, he wears a fixed distinctive

emblem recognizable at a distance, he carries arms openly, and he conducts

operations in accordance with the laws and customs of war.94 Because terrorists do

not follow these rules, they are not covered under the Geneva Convention as POWs.95

It should be noted that Protocol I art. 96 requires non-state belligerents, in order for

their members to be entitled to protected treatment under the Protocol, to file a

declaration with the Swiss Government accepting the obligations of the Protocol.

If al Qaida can be viewed as an irregular army, then, no member of al Qaida

would be entitled to POW treatment. On the other hand, if al Qaida is a political

organization, only members who engage in warlike activities are unlawful

combatants. Other members, as well as civilians who give them aid that doesn’t

amount to direct participation in hostilities, do not lose their status as civilians.

Members of al Qaida captured in Afghanistan may be entitled to POW or civilian

status, depending upon the circumstances of their capture. If they are members of the

armed forces, they must be treated as POWs, even if they are accused of previously

violating the law of war or carrying out a terrorist act.96 GC III requires that a POW

who is not accused individually of committing a crime be detained in accordance

with appropriate guarantees of rights and humane treatment. POWs accused of a

crime may be tried and imprisoned in the same manner that a member of the armed

forces of the detaining power would be treated.97

A civilian member of al Qaida captured in Afghanistan without having

participated in the hostilities may be detained only in accordance with GC IV. If that

individual is suspected of having committed a crime, he or she is entitled to a regular

trial.98 A civilian who has engaged in hostile or belligerent conduct is still a

protected person, although one not entitled to POW treatment.99 A civilian captured

within the United States who is “definitely suspected” of activities hostile to the

There is disagreement as to whether civilians may participate only in the case of a levée

en masse, or spontaneous uprising of a population to defend itself against occupying forces,

or whether civilians have an absolute duty to abstain from hostilities. See CIVILIANS IN WAR

supra note 26, at 16-17.

See HANDBOOK, supra note 9, at 68.

See Travalio, supra note 68, at 185.

See id.

See GC III art. 85.

Id. Art. III

GC IV art. 71.

See FM 27-10 § 247(b) (interpreting GC IV art. 4).

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national security, such as sabotage and espionage, is not entitled to claim such rights

and privileges under GC IV that would be “prejudicial to the security of the state.”100

However, such persons must nevertheless be treated with humanity and if subject to

trial, “shall be granted the full rights and privileges of a protected person” under GC

IV.101

Legal Bases for Establishing Military Commission

United States law incorporates the international law of war.102 The United

States adheres to the law of war through incorporation of the customary rules and

treaty provisions into regulations of the armed forces. The Law of Land Warfare, FM

27-10 may be viewed as an embodiment of the United States Army’s interpretation

of the law of war on land. Although the manual is not considered binding upon

courts and tribunals interpreting the law of war, those provisions of the manual that

are neither statutes nor the text of treaties to which the United States is a party may

be considered as evidence of the custom and practice of the law of war.103

Military jurisdiction is recognized from two sources: “that branch of a country’s

municipal law which recognizes its military establishment” and “that which is

derived from international law, including the law of war.”104 The U.S. military

exercises its jurisdiction through the use of courts-martial, military commissions,

provost courts, and other military tribunals.105

A military commission consists of a panel of military officers convened by

military authority to try enemy belligerents on charges of a violation of the law of

war.106 It is distinct from a military court martial, which is a panel set up to try U.S.

servicemembers (and sometimes civilians accompanying the armed forces) for

violations of the Uniform Code of Military Justice. U.S. servicemembers charged

with a war crime may be tried before court martial or in federal court.107

100

See FM 27-10 § 248 (citing GC IV art. 5).

101

See id.

102

The Paquete Habana, 175 U.S. 677, 700 (1900).

103

See FM 27-10, supra note 33, at § 1.

104

See id. § 13.

105

See id.

106

See Crona and Richards, supra note 10, at 368.

107

The War Crimes Act of 1996, codified at 18 U.S.C. §2441, subjects persons suspected

of perpetrating a violation of the Geneva Conventions and other international conventions

to criminal punishment if the perpetrator or victim is either a U.S. servicemember or a U.S.

national. Article 18 of the UCMJ, 10 U.S.C. § 818, provides general court martial

jurisdiction over “any person who by the law of war is subject to trial by a military tribunal

and may adjudge any punishment permitted by the law of war.” Arguably, this language may

be used to subject any alleged violator of the law of war – regardless of citizenship or

military status – to court martial, but Congress, in enacting the War Crimes Act of 1996,

presumed article 18 could only be applied to military personnel. See Maj. Jan E.

(continued...)

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President Bush’s order authorizing the use of military commissions for the trial

of terrorists cites the President’s authority under the Constitution as well as the laws

of the United States, including the congressional authorization to use military force

in response to the September 11 attacks,108 as well as 10 U.S.C. §§ 821 and 836.

There is no express language in the Constitution and very little mention in the

legislative authorities cited that clearly authorizes military tribunals; however, there

is historical precedent that may form a basis for an interpretation of the authorities

to support the order.

The Constitution.

The Constitution empowers the Congress to declare war and “make rules

concerning captures on land and water,”109 to define and punish violations of the

“Law of Nations,”110 and to make regulations to govern the armed forces.111 The

Constitution further empowers the Congress to make all laws “necessary and proper”

for the execution of all powers under the Constitution.112 The Congress also has the

power to regulate the jurisdiction of the courts113 and to establish such inferior

tribunal as it deems necessary.114

Generally, the power of the President to convene military commissions flows

from his authority as Commander in Chief of the Armed Forces and his responsibility

to execute the laws of the nation.115 Under the Articles of War and subsequent

statute,116 the President has at least implicit authority to convene military

commissions to try offenses against the law of war.117 Articles 18 and 21 of the

UCMJ recognize the concurrent jurisdiction of military commissions to deal with

107

(...continued)

Aldykiewicz, Authority to Court Martial Non-U.S. Military Personnel for Serious Violations

of International Humanitarian Law Committed During Internal Armed Conflicts, 167 MIL.

L. REV. 74, 145-48 (2001).

108

Pub. Law 107-40, 115 Stat. 224.

109

U.S. CONST. art. I, § 8, cl. 11.

110

Id. art. I, § 8, cl. 10.

111

Id. art. I, § 8, cl. 14.

112

Id. art. I § 8 cl. 18.

113

Id.; id. art. III § 2.

114

Id. art. I § 9.

115

U.S. CONST. art. II.

116

The Articles of War were codified at 10 U.S.C. § 801 et seq. as part of the Uniform Code

of Military Justice (UCMJ). Although the cases cited in this report interpret the Articles of

War, the relevant sections of the UCMJ would likely be interpreted to be essentially

identical. See Robinson O. Everett & Scott L. Silliman, Forums for Punishing Offenses

Against the Law of Nations, 29 WAKE FOREST L. REV. 509, 515 (1994).

117

Ex Parte Quirin, 317 U.S. 1 (1942).

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“offenders or offenses designated by statute or the law of war.”118 Statutory offenses

for which a military commission may be convened include only aiding the enemy, 10 U.S.C.

§ 904, and spying, 10 U.S.C. § 906. Caselaw suggests that military commissions could

try as enemy belligerents those accused of committing war crimes even if they hold

U.S. citizenship.119 Recognized hostilities with foreign enemies may qualify to

invoke the law of war even where no declared state of war exists.120

Congress has thus recognized the authority to convene military commissions,121

and has delegated to the President the authority to set their rules of procedure, both

trial and post-trial.122 Congress has not, however, provided a definition of the

offenses under the law of war over which a military commission might exercise its

jurisdiction, nor has it explicitly identified many statutory offenses for which the

accused might be tried by military commission.

Precedent .

Most of the United States’ experience with military commissions relates to

occupied territory or conditions of martial law. Although the current crisis does not

fit the typical circumstances associated with war crimes committed by otherwise

lawful combatants in obvious theaters of war, there is some precedent for convening

military commissions to try enemy belligerents for conspiring to commit violations

of the law of war outside of any recognized war zone.

War with Mexico.

The use of military commissions by the United States dates back at least until

the war with Mexico in the 1840's. During the occupation of Mexico in 1847,

General Winfield Scott convened “councils of war” to try Mexican citizens accused

of violations of the law of war, such as committing guerrilla warfare or enticing

American soldiers to desert.123 Despite the lack of statutory authority, General Scott

118

10 U.S.C. § 821.

119

See id; Johnson v. Eisentrager, 339 U.S. 763, 786 (1950); cf Madsen v. Kinsella, 343

U.S. 341 (1952) (upholding jurisdiction of military commission to try civilians in occupied

foreign territory).

120

Johnson v. Eisentrager, 339 U.S. at 786 (citing Duncan v. Kahanamoku, 327 U.S. 304

(1945)). See Crona and Richardson, supra note 10, at 360-61.

121

10 U.S.C. § 821.

122

10 U.S.C. § 836.

123

See Newton, supra note 86, at 15 (noting the councils employed procedures “not

materially differing” from the military commissions conducted at the same time for civilian

offenses). Among the offenses tried by military commission were “assassination, murder,

poisoning, rape, or the attempt to commit either, malicious stabbing or maiming, malicious

assault or battery, robbery, theft, the wanton desecration of churches, cemeteries, and the

destruction, except by order of a superior officer, of public or private property, whether

committed by Mexicans or other civilians in Mexico against individuals of the U.S. military

forces, or by such individuals against such individuals, or against Mexicans or civilians; as

(continued...)

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relied on his own power under the law of war as the occupier of territory to issue the

order.124

Civil War Cases.

In April 1863, Union Army General Order Number 100 declared that military

commissions could prosecute “cases which do not come within the Rules and

Articles of War, or the jurisdiction conferred by statute on courts-martial” by using

the common law of war.125 Military commissions tried more than 2,000 cases during

the war and reconstruction period.126 However, after the war, the courts limited the

jurisdiction to areas occupied by United States forces and governed by martial law127

and limited the jurisdiction to genuine violations of the law of war.128

After the outbreak of the Civil War, Congress enacted the Act of March 3, 1863,

relating to habeas corpus, and regulating judicial proceedings in certain cases

authorizing the suspension of habeas corpus during the Rebellion.129 The President

issued the following proclamation:

That during the existing insurrection, and as a necessary means for suppressing

the same, all rebels and insurgents, their aiders and abettors, within the United

States, and all persons discouraging volunteer enlistments resisting militia drafts,

or guilty of any disloyal practice, affording aid and comfort to rebels, against the

authority of the United States, shall be subject to martial law, and liable to trial

and punishment by courts martial or military commission.

Second. That the writ of habeas corpus is suspended in respect to all persons

arrested, or who now, or hereafter during the Rebellion shall be, imprisoned in

any fort, camp, arsenal, military prison, or other place of confinement, by any

123

(...continued)

well as the purchase by Mexicans or civilians in Mexico, from soldiers, of horses, arms,

ammunition, equipments or clothing.” See id. (citing General Order 20, Army Headquarters

at Tampico, Mexico, Feb. 19, 1847, reprinted in Military Orders-Mexican War, NARG

(entry 134) (as amended by General Orders 190 and 287).

124

See id. at 15.

125

See Newton, supra note 86, at 17 (citing General Order No. 100, Instructions for the

Government of the Armies of the United States in the Field, Apr. 24, 1863, 13, reprinted in

THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds. 1988)).

126

See id.

127

Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Reconstruction Act of March 2,

1867, established military commissions in the occupied lands of the South. Act of Mar. 2,

1867, ch. 153, 14 Stat. 428.

128

See Newton, supra note 86, at 18 n.69 (citing 1 THE LAW OF WAR: A DOCUMENTARY

HISTORY 783-98 (Leon Friedman ed., 1971); Lewis L. Laska & James M. Smith, Hell and

the Devil: Andersonville and the Trial of Captain Henry M. Wirtz, CSA, 1865, 68 MIL. L.

REV. 77 (1975). Captain Henry Wirtz, the commandant of a notorious prisoner of war camp

in Georgia was convicted in 1865 by a military commission and sentenced to die for murder

and conspiring to maltreat federal prisoners of war. See id.

129

12 Stat. 755.

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military authority, or by the sentence of any court martial or military

commission.130

The government sought to prosecute members of a group called the Sons of

Liberty, an organized group of conspirators operating in Indiana who had allegedly

been hired by Confederate officials to destroy the North.131 The “Supreme Grand

Commander of the Sons of Liberty” was convicted by a military commission and

sought review by the Supreme Court, which held it had no constitutional or statutory

authority to review military commissions.132 However, his co-conspirator Lamdin

P. Milligan, who was convicted and sentenced to death on charges of conspiracy

against the government, giving aid and comfort to the enemy, inciting insurrection,

disloyal practices, and violation of the law of war, was granted his petition to the

Court for habeas corpus. The Supreme Court recognized military commission

jurisdiction over violations of “laws and usages of war,” but stated those laws and

usages “...can never be applied to citizens in states which have upheld the authority

of the government, and where the courts are open and their process unobstructed”133

The Supreme Court explained its reasoning:

It will be borne in mind that this is not a question of the power to proclaim

martial law, when war exists in a community and the courts and civil authorities

are overthrown. Nor is it a question what rule a military commander, at the head

of his army, can impose on states in rebellion to cripple their resources and quell

the insurrection...Martial law cannot arise from a threatened invasion. The

necessity must be actual and present; the invasion real, such as effectively closes

the courts and deposes the civil administration.134

However, in 1865 the Attorney General found that co-conspirators charged in

the assassination of President Lincoln could be tried by military commission, despite

the fact that the courts were operating in Washington, D.C.135 His opinion

emphasized the difference between “open and active participants” in war and “secret,

but active participants” in violation of the law of war.136

130

See Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 15 -16 (1866) (citing Presidential

Proclamation of September 24th, 1862).

131

See Newton, supra note 86, at 18.

132

Ex parte Vallandigham, 28 F. Cas. 874 (C.C.S.D. Ohio 1863) (No. 16,816), cert. denied,

68 U.S. (1 Wall.) 243 (1863).

133

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1866).

134

Ex Parte Milligan, 71 U.S. at 127.

135

Military Commissions, 11 Op. Atty Gen. 297; 1865 U.S. AG LEXIS 36 (July, 1865)

136

11 Op. Atty Gen. 297; 1865 U.S. AG LEXIS 36, *13-14. The Attorney General opined:

The law and usage of war contemplate that soldiers have a high sense of personal

honor. The true soldier is proud to feel and to know that his enemy possesses personal

honor, and will conform and be obedient to the laws of war. In a spirit of justice, and

with a wise appreciation of such feelings, the laws of war protect the character and

honor of an open enemy. When by the fortunes of war one open enemy is thrown into

(continued...)

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One of the men tried was Dr. Samuel Mudd, sentenced to life in prison for

aiding and abetting after the fact the conspiracy by providing medical assistance,

lodging, and horses to John Wilkes Booth and a co-conspirator.137 Dr. Mudd later

received a full pardon for his work in battling yellow fever in the prison. His greatgrandson filed an application with the Army Board for Correction of Military

Records asserting his great-grandfather was innocent of the charges and that the

military commission lacked jurisdiction to try a citizen of Maryland when the courts

were fully functional. The Board recommended the conviction be set aside, but the

Secretary of Defense denied the application. The United States District Court for the

District of Columbia dismissed the appeal, finding that “if Dr. Samuel Mudd was

charged with a law of war violation, it was permissible for him to be tried before a

military commission even though he was a United States and Maryland citizen and

the civilian courts were open at the time of the trial.”138

Other Conflicts.

In 1864 the United States made a treaty with the Modoc Indians in which the

tribe agreed to remain on a reservation in the State of Oregon. United States troops

were subsequently sent out to cause them to return to the reservation after they had

left it. A conflict ensued, and soon thereafter the Indians allegedly murdered several

local citizens and their families. More fighting between the U.S. troops and the

Modoc Indians broke out. The U.S. detachment sent forth several emissaries to

negotiate a peaceable conclusion. During the negotiations, the Modocs

“treacherously assassinated” two negotiators and severely wounded the third. Captain

Jack, the leader of the Modoc tribe, was captured along with most of his tribe, and

the military sought the Attorney General’s opinion as to whether the accused might

be tried by military tribunal. The Attorney General agreed that they should be tried

by the military commission, although he found that

It is difficult to define exactly the relations of the Indian tribes to the United

States; but as they have been recognized as independent communities for treatymaking purposes, and as they frequently carry on organized and protracted wars,

they may properly, as it seems to me, be held subject to those rules of warfare

which make a negotiation for peace after hostilities possible, and which make

perfidy like that in question punishable by military authority.139

(...continued)

the hands and power of another, and is charged with dishonorable conduct and a

breach of the laws of war, he must be tried according to the usages of war. Justice and

fairness say that an open enemy to whom dishonorable conduct is imputed, has a right

to demand a trial. If such a demand can be rightfully made, surely it cannot be

rightfully refused. It is to be hoped that the military authorities of this country will

never refuse such a demand, because there is no act of Congress that authorizes it. In

time of war the law and usage of war authorize it, and they are a part of the law of the

land.

137

Mudd. v. Caldera, 134 F. Supp. 2d 138, 140 (2001).

138

Id. at 146 (reading together Ex Parte Milligan and Ex Parte Quirin).

139

14 Op. Atty Gen. 249; 1873 U.S. AG LEXIS 27 (1873).

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World War I.

President Wilson did not use military commissions during World War I to try

individuals for war crimes committed within the territory of the United States.

Military authorities sought to try Pable Waberski, a Russian national sent by the

Germans to “blow things up in the United States,” by military commission.

Waberski was arrested upon crossing the border from Mexico into the United States

and charged with “lurking as a spy” under article 82 of the Articles of War.140 The

Attorney General opined in a letter to the President that the jurisdiction of the

military was improper, noting

He had not entered any camp, fortification or other military premises of the

United States. He had not, so far as appears, been in Europe during the war, so

had not come through the fighting lines or field of military operations. Martial

law had not been declared at Nogales or thereabouts nor anywhere in the United

States, and the regular federal civilian courts were functioning in that district and

throughout the United States with at least their normal efficiency.

The Attorney General cited Ex Parte Milligan for the proposition that offenses

committed outside of the field of military operations and by a person not a member

of the military where regular civilian courts were functioning were not subject to the

jurisdiction of a military tribunal. The Attorney General therefore found that the

words “or elsewhere” in Article 82 of the Articles of War were not constitutional.141

The law of war, the opinion stated, defined a spy as

[a] person who, without authority and secretly, or under a false pretext, contrives

to enter within the lines of an army for the purpose of obtaining material

information and communicating it to the enemy; or one who, being by authority

within the lines, attempts secretly to accomplish such purpose. 142

According to the Attorney General, Waberski, therefore, was not a spy

according to the laws of war and, if guilty of any criminal offense, was triable only

by the regular civilian criminal courts. It seemed plain to the Attorney General that

“Congress can not constitutionally confer jurisdiction upon a military court to try and

sentence any man not a member of the military forces and not subject to the

140

Superceded by UCMJ article 106, codified at 10 U.S.C. § 906.

141

Trial of Spies by Military Tribunal, 31 Op. Atty Gen. 356; 1918 U.S. AG LEXIS 2

(1918) Section 1343 of the United States Revised Statutes and article 82 of the Articles of

War, which were practically identical in language and read as follows:

All persons who, in time of war, or of rebellion against the supreme authority of the

United States, shall be found lurking or acting as spies, in or about any of the

fortifications, posts, quarters, or encampments of any of the armies of the United

States, or elsewhere, shall be triable by a general court-martial, or by a military

commission, and shall, on conviction thereof, suffer death.

142

See 31 Op. Atty Gen. 356; 1918 U.S. AG LEXIS 2 (1918) (citing article 29 of the Hague

Convention of 1917, Respecting the Laws and Customs of War on Land).

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jurisdiction of such court under the laws of war or martial law.”143 He explained to

the President:

If he could constitutionally be tried by court-martial, then it would logically

follow that Congress could provide for the trial by military courts of any person,

citizen or alien, accused of espionage or any other type of war crime, no matter

where committed and no matter where such person be found and apprehended.144

In 1920, Congress reenacted Article of War 15 with the addition of the wording “by

statute or” before the words “by the law of war.”145 The words “or elsewhere” remain

in article 106 of the UCMJ.146

World War II.

The post-World War II response to war crimes included both national and

international military tribunals. While the Nuremberg war crimes tribunal was the

most visible venue in the European theater, the number of national military tribunals

far exceeded the number of trials conducted in the international tribunals.147

The Supreme Court confirmed the authority of the President, under his power

as Commander in Chief of the Armed Forces and as delegated to him by Congress

to try accused war criminals in occupied territories even though hostilities had

ceased.148 The Supreme Court granted habeas corpus review to General Tomoyuki

Yamashita, who had been sentenced by military commission to be hanged for

atrocities committed by troops under his command. However, the Court declined to

review the merits of the case or the sufficiency of evidence.149 Yamashita argued,

among other things, that no charge was stated against him under the law of war,

because the military command did not allege that Yamashita committed or ordered

the offenses of his troops against the civilian population in the Philippines that

formed the basis for the charges. The Supreme Court disagreed, noting he had been

143

Id. at LEXIS *11-12.

144

Id. at LEXIS *12.

145

See Madsen v. Kinsella, 343 U.S. 341, 351 n.17 (1952)(citing 41 Stat. 790, 10 U.S.C.

§ 1486).

146

10 U.S.C. § 906. FM 27-10 notes that it is undecided whether the phrase “or elsewhere”

justifies trial by military tribunal of civilians outside the designated places or territory under

martial law. See FM 27-10 § 76.

147

See Aldykiewicz, supra note 107, at 75-76 (noting that only 200 cases were tried by the

Nuremberg tribunal, while the United States Army judge advocate prosecuted some 1,600

German war crimes defendants of crimes committed against American troops, or in Nazi

concentration camps that had been overrun and “liberated” by American forces. French and

British tribunals tried about an equal amount.).

148

149

In re Yamashita, 327 U.S. 1 (1946).

See id. at 17 (“These are questions within the peculiar competence of the military

officers composing the commission and were for it to decide”).

CRS-24

properly charged for his breach of duty by failing to control the operations of the

members of his command, permitting them to commit the specified atrocities.150

General Yamashita also argued that he was entitled to a trial using the same

procedures as would be applied in courts martial, according to article 63 of the

Geneva Convention of 1929.151 The Supreme Court interpreted article 63 as applying

only to offenses committed during captivity,152 and therefore declined to examine the

procedural rules applied by the military commission.

Less established was the authority to try enemy saboteurs caught within the

territory of the United States during war. After eight Nazi saboteurs were caught by

the Coast Guard, the President issued a proclamation that all such enemy saboteurs

would be tried by military commission.153 The eight German saboteurs (one of whom

was purportedly a U.S. citizen) were tried by military commission for entering the

United States by submarine, shedding their military uniforms, and conspiring to use

explosives on unknown targets. In the case of Ex Parte Quirin, the Supreme Court

denied their writs of habeas corpus, holding that trial by such a commission did not

offend the Constitution and was authorized by statute.

Despite the fact that the civil courts were open and functioning normally, the

Court held that the charge made out a valid allegation of an offense against the law

of war for which the President was authorized to order trial by a military

commission.154 The Court also distinguished Milligan, noting that he had not been

a part of or associated with the armed forces of the enemy, and therefore was a nonbelligerent, not subject to the law of war.155 The Court did not explain where it

would draw the line:

We have no occasion now to define with meticulous care the ultimate boundaries

of the jurisdiction of military tribunals to try persons according to the law of war.

It is enough that petitioners here, upon the conceded facts, were plainly within

those boundaries, and were held in good faith for trial by military commission,

charged with being enemies who, with the purpose of destroying war materials

and utilities, entered, or after entry remained in, our territory without uniform –

an offense against the law of war. We hold only that those particular acts

150

See id (“Obviously charges of violations of the law of war triable before a military

tribunal need not be stated with the precision of a common law indictment.”)

151

47 Stat. 2052. Article 63 provided:

Sentence may be pronounced against a prisoner of war only by the same courts

and according to the same procedures as in the case of persons belonging to the

armed forces of the detaining Power.

327 U.S. at 20-21.

152

Id.

153

Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964.

154

Ex Parte Quirin, 317 U.S. 1, 45 (1942).

155

Id.

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constitute an offense against the law of war which the Constitution authorizes to

be tried by military commission.156

The Court declined to apply the language of the Articles of War to determine

whether the procedures comported with the statute, but the Justices were unable to

agree whether Congress had not meant to apply the Articles of War to military

commissions or whether the Articles could be interpreted to support the procedures

used.157 In 1945, President Roosevelt issued a new military order establishing rules

for convening military commissions to try enemy saboteurs, in which he clarified the

applicability of some of the Articles of War.158 There was no occasion to test the new

order, however. When Congress incorporated the Articles of War into the UCMJ in

1950, it included Article of War 15, “Jurisdiction of courts martial not exclusive”,

as Article 21 of the UCMJ to “preserve existing Army and Air Force law which gives

concurrent jurisdiction to [other] military tribunals...”.159

Other Rulings on Military Courts.

The Supreme Court has issued several more recent opinions limiting the

authority of military courts-martial to persons reached pursuant to constitutional

powers to regulate the armed forces.160 The Court held that an honorably discharged

former soldier could not be tried by court martial for a crime he allegedly committed

while stationed overseas.161 The Court also set aside the military conviction of a

civilian dependant of a servicemember stationed overseas for a capital crime, at least

during time of peace when the United States was not occupying the country in which

the crime took place.162 The Court extended that ruling to civilian dependants

overseas charged with noncapital crimes, voiding the conviction by court martial of

156

Id. at 45-46.

157

Ex Parte Quirin, 317 U.S. 1, 46-47. Petitioners had argued the commission was required

to comply with Articles 38 (rules of evidence), 43 (unanimous verdict for death penalty

offenses), 46, 50 1/2, and 70 (procedures for review).

158

See Governing the Establishment of Military Commissions for the Trial of Certain

Offenders Against the Law of War and Governing the Procedure for Such Commissions,

Military Order of January 11, 1945, 10 Fed. Reg. 549 (Jan. 16, 1945) (reprinted at Appendix

B). Article 70 was to be deemed inapplicable, while Article 50 1/2 was to apply. Id .

Article 70 prescribed pre-trial procedure, including charges and specification, investigation,

the right to cross-examine witnesses and present a defense, the right to a speedy trial and

notification of charges. See 10 U.S.C. § 1542 (1940). Article 50 1/2 concerned procedure

for review by a board of the record to determine its legal sufficiency, forwarding of the

record with recommendations to the President, and possible rehearing. See 10 U.S.C. §

1522 (1940).

159

See S. Rep. 81-486, reprinted in 1950 U.S.C.C.A.N 2222, 2236 (citing Ex Parte Quirin

as the reason for preserving the article).

160

U.S. CONST. art. I § 8, cl. 14.

161

See United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

162

Reid v. Covert, 354 U.S. 1 (1957).

CRS-26

a military wife charged with involuntary manslaughter.163 The Court later ruled that

civilian employees could not be tried by court martial, even for crimes committed

overseas.164 While these more recent cases seem to demonstrate a trend toward

limiting the jurisdiction of military courts martial, they may have little bearing on the

jurisdiction of military commissions to try enemy belligerents under the

constitutional war powers. The validity of any military commissions that might be

convened pursuant to the President’s Military Order of November 13, 2001,

therefore, will likely depend in large part on whether the defendants are legitimately

classified as “enemy belligerents” and “unlawful combatants,” or whether they are

merely alien civilians.

Analysis of President’s Military Order

The Military Order issued by President Bush, and the circumstances under

which it was issued, differ substantially from the World War II precedent used in

Quirin. Perhaps the most obvious difference is that war had been formally declared

by Congress against foreign states. It should be remembered that the law of war has

undergone significant changes since the Quirin case was decided, most notably with

the 1949 Geneva Conventions. While the importance of a formal declaration of war

has faded since World War II, the law regarding the treatment of enemy civilians and

combatants has progressed significantly.

Wartime Basis.

President Roosevelt issued Proclamation 2561 under the caption “Denying

Certain Enemies Access to the Courts of the United States” on July 2, 1942,165 after

the capture of the eight Nazi saboteurs. On that same day, the President issued a

Military Order appointing a commission of seven general officers to try the named

defendants for “offenses against the law of war and the Articles of War.”166 The

order cited the President’s authority as President and Commander in Chief, the

Constitution and statutes of the United States, and specifically Article of War 38.167

163

Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960).

164

McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).

165

7 Fed. Reg. 5101 (July 7, 1942), reprinted at Appendix B.

166

7 Fed. Reg. 5103 (July 7, 1942), reprinted at Appendix B.

167

Codified at 10 U.S.C. § 1509 (1940), which stated:

The President may, by regulations, which he may modify from time to time,

prescribe the procedure, including modes of proof, in cases before courts-martial,

courts of inquiry, military commissions, and other military tribunals, which

regulations shall insofar as he shall deem practicable, apply the rules of evidence

generally recognized in the trial of criminal cases in the district courts of the

United States: Provided, That nothing contrary or inconsistent with these articles

shall be so prescribed: Provided further, That all rules made in pursuance of this

article shall be laid before the Congress annually.

(continued...)

CRS-27

Proclamation 2561 does not mention Congress’ declaration of war against

Germany. The findings state simply that the safety of the United States demands that

all enemies who enter U.S. territory “as part of an invasion or predatory incursion”

or have entered “to commit sabotage espionage or other hostile or warlike act”should

be promptly tried in accordance with the law of war. The “invasion” language

appears to be borrowed from the Alien Enemy Act, which states that during declared

war between the United States and any foreign nation or government, or when an

invasion is perpetrated by any foreign nation or government, and the President makes

a proclamation of the event, the President may “direct the conduct to be observed, on

the part of the United States toward the aliens who become ... liable [as alien

enemies”]... 168 The use of this language suggests that Proclamation 2561 might have

been intended as a proclamation pursuant the Alien Enemy Act. On the other hand,

a review of contemporaneous Presidential proclamations shows that President

Roosevelt ordinarily cited specific statutory authority to support actions taken.169

President Bush’s Military Order of November 13 relies in large part on the

congressional authorization to use force, which gives the President the authority to

to use all necessary and appropriate force against those nations, organizations,

or persons he determines planned, authorized, committed, or aided the terrorist

attacks that occurred on September 11, 2001, or harbored such organizations or

persons, in order to prevent any future acts of international terrorism against the

United States by such nations, organizations or persons.170

The resolution does not address military tribunals explicitly, but could be interpreted

as a broad authorization to exercise the President’s power as Commander in Chief

of the Armed Forces to prosecute an armed conflict.171 The Congress stopped short

of declaring war, which would have automatically triggered a number of statutes,172

167

(...continued)

The reworded provision is now contained in article 36 of the UCMJ, codified at 10 U.S.C.

§ 836, and is essentially the same but adds “the principles of law” prior to the “rules of

evidence generally recognized” and removes the requirement to report the rules to Congress.

168

50 U.S.C § 21(1940) (the language has not changed).

169

See, e.g., Proclamation 2537, Regulation Pertaining to Alien Enemies (Jan. 14, 1942)

(citing the Alien Enemy Act to support proclamation, without mentioning declaration of

war.)

170

P.L. 107-40.

171

See Ex Parte Quirin, 317 U.S. 1, 26 (1942):

The Constitution thus invests the President, as Commander in Chief, with the

power to wage war which Congress has declared, and to carry into effect all laws

passed by Congress for the conduct of war and for the government and regulation

of the Armed Forces, and all laws defining and punishing offenses against the

law of nations, including those which pertain to the conduct of war.

172

See Declarations of War Authorizations for the Use of Military Force: Background and

Legal Implications, CRS Report RL31133 (Sept. 27, 2001).

CRS-28

including the Alien Enemy Act.173 The President could invoke the Act by

proclamation without a declaration of war if “a predatory incursion” has been

perpetrated by a hostile nation. Since the current armed conflict does not involve a

hostile state as such, the Act is probably not applicable nor very practical, since it

would only allow the President to direct the treatment of “natives, citizens, denizens

or subjects” of the hostile state.174

Jurisdiction.

While the 1942 proclamation defined the acts subject to prosecution by military

tribunal, the new order defines a class of non-citizens whose members are subject to

military trial upon the President’s determination. The President must first determine

that the person is or ever has been associated with terrorist acts or organizations, and

that it is in the interest of national security to subject that person to the order. The

President has complete discretion once those determinations are made. Alien

terrorists and violators of the law of war might not be subject to the order; citizen

terrorists and war criminals are never subject to the order.175

Proclamation 2561 pertained to “subjects, citizens or residents of any nation at

war with the United States or who give obedience to or act under the direction of any

such nation” who are accused of certain offenses. Thus, U.S. citizens who acted as

enemy agents were covered by the proclamation.176 However, violators of the law of

war outside the territory of the United States, or those who entered the United States

lawfully, fell outside the language of the Proclamation.177

The M.O. of November 13 applies only to non-citizens. It should be noted that

aliens, even those lawfully admitted to the country, do not necessarily enjoy the same

constitutional rights as citizens with regard to freedom from unreasonable seizures

of their persons. During time of war, aliens who are citizens of hostile nations may

be summarily detained and deported, and their property may be confiscated under

the Alien Enemy Act.178 They may also be denied access to the courts of the United

173

50 U.S.C. §§ 21 et seq.

174

50 U.S.C. § 21 (1940).

175

The M.O. appears to leave open the possibility that violators of the law of war who do

not fall into the category of persons defined in section 2 may be nevertheless be prosecuted

by military commission. M.O. at section 7(3).

176

Ex Parte Quirin, 317 U.S. 1, 37 (1941) (“Citizenship in the United States of an enemy

belligerent does not relieve him from the consequences of a belligerency which is unlawful

because in violation of the law of war.”).

177

Military commissions were established without presidential proclamation to try war

criminals outside the territory of the United States.

178

50 U.S.C.§ 21 provides:

Whenever there is a declared war between the United States and any foreign nation

or government, or any invasion or predatory incursion is perpetrated, attempted, or

threatened against the territory of the United States by any foreign nation or

(continued...)

CRS-29

States if they would use the courts to the advantage of the enemy or to impede the

U.S. prosecution of a war.179

Even during times of peace, nonimmigrant aliens may be subjected to different

treatment based on their nationality.180 In deportation proceedings, deportable aliens

probably have no constitutional right protecting them from selective deportation181

and the First Amendment does not provide protection against removal based on

association.182 Aliens who have entered the country and established a connection to

it, however, are protected by the Constitution, though their rights may differ from

those of citizens. In criminal proceedings, such aliens receive full due process under

the Constitution. Whether certain non-enemy aliens may be subjected to criminal

punishment or detained indefinitely for their suspected association with terrorist

groups is uncertain.183

Offenses Triable by Military Commission.

10 U.S.C. § 821 allows concurrent jurisdiction between courts martial and

military commissions for cases that by statute or by the law of war are triable by

military commission. Military commissions trying enemy belligerents for war crimes

apply directly the international law of war, without recourse to domestic criminal

statutes unless such statutes are declaratory of international law.184

Proclamation 2561 limited the predicate offenses to entering the United States

surreptitiously during war and “committing or attempting or preparing to commit

178

(...continued)

government, and the President makes public proclamation of the event, all natives,

citizens, denizens, or subjects of the hostile nation or government, being of the age

of fourteen years and upward, who shall be within the United States and not actually

naturalized, shall be liable to be apprehended, restrained, secured, and removed as

alien enemies. The President is authorized in any such event, by his proclamation

thereof, or other public act, to direct the conduct to be observed, on the part of the

United States, toward the aliens who become so liable; the manner and degree of

the restraint to which they shall be subject and in what cases, and upon what

security their residence shall be permitted, and to provide for the removal of those

who, not being permitted to reside within the United States, refuse or neglect to

depart therefrom; and to establish any other regulations which are found necessary

in the premises and for the public safety.

179

See Johnson v. Eisentrager, 339 U.S. 763, 776 (1950).

180

See Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980)

(upholding INS regulations requiring Iranian students to report to INS).

181

American-Arab Anti-Discrimination Comm. v. Reno, 525 U.S. 471 (1999).

182

Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

183

See President’s order at § 2 (defining as persons subject to the order any alien who “is

or was a member of the organization known as al Qaeda” at “the relevant times”).

184

See U.S. Army Field Manual (FM) 27-10, The Law of Land Warfare, section 505(e).

CRS-30

sabotage, espionage, hostile or warlike acts, or violations of the law of war.”185 The

proclamation did not contain any definitions of the offenses. The eight saboteurs

were charged with violations of the law of war and articles 81 and 82 of the Articles

of War, as well as conspiracy to commit the foregoing.186 Therefore, the possibility

that the language “hostile or warlike acts” was meant to include offenses that were

not already included in the term “violation of the law of war,” possibly causing the

proclamation to exceed the statutory limit on jurisdiction, was not addressed.

President Bush’s M.O. is ambiguous as to which offenses may be tried by

military commissions. While the President’s authority to try as saboteurs those

responsible for the September 11 attacks appears to be supported by precedent,187 the

M.O. could be construed as a grant of authority to detain and perhaps try persons not

suspected of direct participation or complicity in those attacks. The order allows the

President to subject a non-citizen to trial by military tribunal if he determines that

person is or was a member of al Qaida or committed, participated, aided and abetted,

or conspired in any terrorist act, even those unrelated to al Qaida’s campaign of terror

against the United States. The order appears to apply to any act of terrorism during

the “relevant time” and anywhere in the world, so long as damage or injury to United

States persons was intended or caused. The order may also include persons who are

protected under the Geneva Conventions and are entitled to due process in

accordance with international law. A court could construe the order as incorporating

those standards in order to avoid conflict with U.S. treaty obligations.188

Section 4 of the order provides that “[a]ny individual subject to this order shall,

when tried, be tried by military commission for any and all offenses triable by

military commission....” (Emphasis added). This language could be construed as

185

Espionage was subject to the jurisdiction of military commissions by statute. 50 U.S.C.

§ 38 (1940).

186

Article 81, codified at 10 U.S.C. 1553 (1940) stated:

Whosoever relieves or attempts to relieve the enemy with arms, ammunition,

supplies, money, or other thing, or knowingly harbors or protects or holds

correspondence with or gives intelligence to the enemy, either directly or

indirectly, shall suffer death or such other punishment as a court martial or

military commission may direct.

This language is superceded by Article 104, UCMJ, codified at 10 U.S.C. § 904.

Article 82, codified at 10 U.S.C. 1554 (1940) stated:

Any person who in time of war shall be found lurking or acting as a spy in or

about any of the fortifications, posts, quarters, or encampments of any of the

armies of the United States, or elsewhere, shall be tried by a general court martial

or by a military commission, and shall, on conviction thereof, suffer death.

This language is superceded by Article 106, UCMJ, codified at 10 U.S.C. § 906.

187

Ex Parte Quirin, 317 U.S. 1 (1942); Mudd v. Caldera, 134 F.Supp.2d 138, 146 (2001).

188

See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) .

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impliedly limiting the offenses to those validly triable by military commission

pursuant to 10 U.S.C. § 36 under the relevant circumstances, which would sharply

narrow the scope of the order. Such an interpretation would lead to the conclusion

that the language in section 2 confines the offenses triable to only those war crimes

that are committed by non-citizens who fit the definition in section 2. In other words,

the offenses in section 2 are not necessarily the offenses for which the defendant will

be tried, but rather, are to be used by the President to determine whether an individual

may be subject the order. Violations of the law of war by others could still be tried

by military commission, but such a commission need not comply with the M.O. of

November 13.

If the order is interpreted to be consistent with the congressional authorization

for the use of force and 10 U.S.C. § 821, incorporating by reference the law of war,

the order would not permit the trial of individuals for terrorist acts unless the acts

occurred as part of the present armed conflict (including preparation therefor) and

they are violations of the law of war. Therefore, the language “at the relevant time”

in Section 2(a)(1) should probably be construed to mean during and related to the

present armed conflict with terrorist forces emanating from Afghanistan.

Authority to Detain.

The President’s order could be construed to authorize detention of persons for

violations of statutes not expressly triable by military commission, based solely on

a determination that the accused belongs to the class of persons subject to the order.

Some language in the order could be construed to authorize detention of such persons

even though they are not charged with any crime at all.189

The authority to detain suspected war criminals is arguably implicit in the power

to authorize their trial by military commission. Unless the authority is an inherent

power of the Executive, it must flow either from statute or from the law of war.

Although the language of the order could be construed to allow the indefinite

detention of persons subject to the order without any charge, an interpretation that

incorporates the authority it cites would lead to a different conclusion. The order

could not consistently with 10 U.S.C. § 821 authorize detention of persons who are

neither unlawful combatants accused of violating the law of war nor persons accused

of violating 10 U.S.C. §§ 904 or 906.

The law of war does not permit punishment of enemy civilians, non-combatants,

or combatants (even unlawful ones) for crimes for which they bear no individual

responsibility.190 Therefore, their detention is likewise not authorized except as

provided for by statute or convention. It might be argued that Congress implicitly

allows the President to detain non-citizens without explicit statutory authority,

because the President is expressly prohibited by statute from detaining citizens except

189

See M.O. at § 2(e) (“... it is necessary for individuals subject to this order pursuant

to section 2 hereof to be detained, and, when tried, to be tried for violations of the

laws of war and other applicable laws by military tribunals.”).

190

See Aldrich, supra note 71, at 8. Persons detained as a security threat must be accorded

proper treatment according to their status under the Geneva Conventions.

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in accordance with statute.191 However, in this case such an argument may be less

persuasive because Congress, in enacting the USA PATRIOT Act, placed express

limits on the authority of the President to detain aliens for national security

purposes.192 It is arguably insufficient for the President to issue a determination that

an alien is subject to the order, unless the determination also contains an allegation

that the detainee has committed a violation of the law of war. The interpretation of

international law regarding responsibility for the acts of others through indirect

participation may be necessary to justify detention of any alien suspected of

conspiring with or aiding terrorists in ways that fall short of violating the law of war

as an unlawful belligerent.

Jurisdiction of Other Courts.

A feature of the November 13 M.O. not apparent in the Proclamation or Military

Orders issued by President Roosevelt is language that appears to divest the federal

and state courts of jurisdiction over any offense committed by a person subject to the

order.193 Indeed, the order appears to strip the jurisdiction of foreign courts and

international tribunals to hear appeals, even indirect appeals, of persons detained or

convicted under the order. (Section 7b(2)ii-iii).

To the extent that the order would affect the jurisdiction of state and federal

courts over crimes, especially those not triable by military tribunal under statute or

the common law of war, it may be judged to be overbroad. Congress’

acknowledgment of concurrent jurisdiction over certain crimes to courts martial and

military commissions does not imply that the President has the power to create

exclusive jurisdiction in the military tribunals for offenses that might by statute be

tried in another court. The President would not seem to have the constitutional

authority to regulate the jurisdiction of courts or convene inferior tribunals unless so

authorized by act of Congress. Article 21 of the UCMJ recognizes the military

commissions’ jurisdiction to try only “offenders or offenses that by statute or by the

law of war may be tried by military commissions, provost courts, or other military

tribunals.”194 Therefore, references to “offenses” and “crimes” in the order most

likely must be understood to refer to “offenses against the law of war” and “war

crimes,” or to those offenses mentioned expressly by statute as triable by military

commission.

191

18 USCS § 4001 (2001) provides:

No citizen shall be imprisoned or otherwise detained by the United States except

pursuant to an Act of Congress.

192

P.L. 107-56 § 412 provides:

The Attorney General shall place an alien detained under paragraph (1) in removal

proceedings, or shall charge the alien with a criminal offense, not later than 7 days

after the commencement of such detention. If the requirement of the preceding

sentence is not satisfied, the Attorney General shall release the alien.

193

See M.O. at section 7(b)(1) (“military tribunals shall have exclusive jurisdiction

with respect to offenses by the individual” subject to the order).

194

10 U.S.C. § 821. See also Newton, supra note 86, at 21(arguing that “the entire scope

of history and American jurisprudence compel the conclusion that Article 21 grants

jurisdiction only over violations of the international laws of war.”).

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Review and Appeal.

Like FDR’s Proclamation, the Bush M.O. directs that “individuals prosecuted

by military tribunal shall not be privileged to seek any remedy or maintain any

proceeding, directly or indirectly, or to have any such remedy or proceeding sought

on the individual's behalf.” The government argued unsuccessfully in the Quirin case

that this language deprived the Court of its opportunity to afford the petitioners a

hearing.195 In light of that decision, the order will not likely be interpreted to deprive

persons of their right to seek habeas corpus relief in federal court, if they would

ordinarily have such rights.196 It is unclear what avenue of redress other than a

petition to file a writ of habeas corpus the order is meant to block.197

If a court agrees to hear a petitioner’s habeas corpus challenge to a conviction

by military commission, it will not likely order the prisoner released or set aside the

verdict “without the clear conviction that [the detention and trial] are in conflict with

the Constitution or laws of Congress constitutionally enacted.”198 Such a hearing

would not inquire into the guilt or innocence of the prisoner,199 or question the

decision of the tribunal, but only whether the tribunal was lawfully convened to hear

the case.200

The Bush M.O. also denies persons subjected to it the privilege of seeking any

remedy in foreign courts or international tribunals. While the language would have

no internationally recognized effect on the jurisdiction of foreign courts or

international tribunals, it could be interpreted to revoke rights detainees would have

under international law, including treaties to which the United States is a party. For

example, a detainee claiming POW status has the right under GC III to protest

perceived violations of his rights to the Detaining Power, the Protecting Power, and

to humanitarian organization.201 This right may not be denounced by the POW, nor

may it be revoked or unnecessarily limited by the Detaining Power.202 A court or

federal agency may interpret the language of the order as an indication that the

President wishes to supercede parts of the Geneva Conventions, possibly binding the

195

Ex Parte Quirin at 24-25 (... there is ... nothing in the Proclamation to preclude access

to the courts for determining its applicability to the particular case”).

196

Id.; Colepaugh v. Looney, 235 F.2d 429 (1956); In re Yamashita, 327 U.S. 1 (1946). But

see Eisentrager v. Johnson, 339 U.S. 763, 777-781 (1950)(enemy alien captured overseas

in territory not occupied by U.S. forces not entitled to habeas corpus).

197

In his Military Order of January 11, 1945, President Roosevelt reissued the authorization

for military commissions without the language denying offenders access to courts. See

Military Order of January 11, 1945, 10 Fed. Reg. 549 (Jan. 16, 1945) (reprinted at Appendix

B).

198

See Ex Parte Quirin at 25.

199

See id.; In re Yamashita, 327 U.S. 1, 8 (1946).

200

See In re Yamashita at 8.

201

See GC III art. 78.

202

See id.; United States v. Noriega, 808 F.Supp. 791, 796-797 (1992) (interpreting GC III

arts. 5, 7, 78, and 85 to accord General Noriega right to protest treatment in prison).

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courts and federal agencies to disregard decisions of an international tribunal or

efforts to intervene on the prisoner’s behalf by his state of nationality or an

international humanitarian organization.

Rules Applicable to the Military Commission

Statutes.

The Supreme Court has construed the UCMJ as broadly delegating power to

the President. This authority may be further delegated to a field commander or any

other commander with the power to convene a general court-martial.203 Statutes

authorize prosecuting persons for failure to appear as witness,204 punishing

contempt,205 and accepting into evidence certain depositions206 and records of courts

of inquiry.207 The proceeding is exempt from statutory requirements in other court

proceedings for a speedy trial.208 The rules pertaining to release and detention

pending certain judicial proceedings likewise do not apply.209 Military commissions

are also excluded from the definition of “agency” in title 5,210 which exempts them

from, among other things, responding to requests for information under the Freedom

of Information Act211 and challenges under the Administrative Procedures Act.212

While the President may set the rules of procedure and evidence for military

tribunals and need only apply “the principles of law and the rules of evidence

generally recognized in the trial of criminal cases in the United States district court”

where he considers it practicable to do so, he may not apply rules contrary to or

inconsistent with the UCMJ.213 Where Congress has included military commissions

in parts of the UCMJ regulating courts martial, the President may not apply a

203

In re Yamashita, 327 U.S. 1 (1946).

204

10 U.S.C. § 847.

205

10 U.S.C. § 848 provides for 30 days’ confinement or a fine of $100, or both, for any

person who disturbs the proceedings.

206

10 U.S.C. § 849. Such evidence is inadmissible in a capital case in a court-martial

proceeding.

207

10 U.S.C. § 850.

208

18 U.S.C. § 3172.

209

18 U.S.C. § 3156.

210

5 U.S.C. § 551 exempts courts martial and military commissions as well as “military

authority exercised in the field in time of war or in occupied territory.” 5 U.S.C. § 701,

Judicial Review, also excludes these entities from the definition of “agency.”

211

See, e.g., 5 U.S.C. §§ 552 et seq.(FOIA).

212

See 5 U.S.C. §§ 500 et seq.

213

10 U.S.C. § 836.

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contrary rule.214 The taking and use of depositions, for example, must adhere to the

provisions of Article 49 of the UCMJ.215

Procedural Rules.

As a non-Article III court, a military commission would not be subject to the

same constitutional requirements that apply to Article III courts.216 Defendants

properly before a military commission, like defendants before a court-martial, would

likely have no right to demand a jury trial217 before a court established in accordance

with rules governing the judiciary.218 There is no right of indictment or presentment

under the Fifth Amendment,219 and there may be no protection against selfincrimination or right to counsel.220 While Congress has enacted procedures

applicable to courts-martial that ensure basic due process rights,221 no such statutory

procedures exist to define due process rights for defendants before military

commissions.

Procedural rules and evidentiary rules are prescribed by the President and may

differ among commissions.222 Courts-martial are conducted using the Military Rules

214

But see In re Yamashita, 327 U.S. 1, 19 (1946) (finding Articles of War 25 and 38

inapplicable to trial of enemy belligerent, despite express mention of military commissions

and other tribunals).

215

10 U.S.C. § 849.

216

Ex parte Quirin, 317 U.S. at 38; see also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,

53-54 (1989); Audrey I. Benison, International Criminal Tribunals: Is There a Substantive

Limitation on the Treaty Power?, 37 STAN. J INT’L L. 75, 99 (2001). The same is true for

a military court-martial conducted under the Uniform Code of Military Justice. Ex parte

Milligan, 71 U.S. (4 Wall.) 2, 123 (1866) (noting a servicemember “surrenders his right to

be tried by the civil courts”).

217

Ex parte Quirin, 317 U.S. 1, 45 (1942).

218

Weiss v.United States, 510 U.S. 163 (1994) (rejecting challenge to the military justice

system based on the fact that military judges are not “appointed” by the President within the

meaning of Article II of the Constitution, and the judges are not appointed to fixed terms of

office).

219

See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).

220

Middendorf v. Henry, 425 U.S. 25 (1976) (holding there is no right to counsel under U.S.

Const. amends. V or VI in summary courts-martial).

221

Weiss at 178 (holding procedures established by Congress to govern military justice to

be adequate to ensure a fair trial consistent with the Due Process Clause of the Fifth

Amendment).

222

10 U.S.C. § 836 provides:

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising

under this chapter [10 USCS §§ 801 et seq.] triable in courts-martial, military commissions

and other military tribunals, and procedures for courts of inquiry, may be prescribed by the

President by regulations which shall, so far as he considers practicable, apply the principles

of law and the rules of evidence generally recognized in the trial of criminal cases in the

United States district courts, but which may not be contrary to or inconsistent with this

(continued...)

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of Evidence set out in the Manual for Courts-Martial;223 however, these rules need

not apply to trials by military commission.224 Subject to the statutory provisions

above, the President may establish any rules of procedure and evidence he deems

appropriate.225

222

(...continued)

chapter [10 USCS §§ 801 et seq.]

(b) All rules and regulations made under this article shall be uniform insofar as

practicable.

223

Exec. Order 12,473, 49 Fed. Reg. 17, 152 (1984). These rules essentially mirror the

Federal Rules of Evidence. See Everett & Silliman, supra note 116, at 517.

224

In re Yamashita, 327 U.S. at 20. See Everett & Silliman, supra note 116, at 513.

225

The evidentiary rules in Yamashita included:

16. Evidence. – a. The commission shall admit such evidence as in its opinion would

be of assistance in proving or disproving the charge, or such as in the commission’s

opinion would have probative value in the mind of a reasonable man. In particular,

and without limiting in any way the scope of the foregoing general rules, the following

evidence may be admitted:

(1) Any document which appears to the commission to have been signed or issued

officially by any officer, department, agency, or member of the armed forces of any

government, without proof of the signature or of the issuance of the document.

(2) Any report which appears to the commission to have been signed or issued by the

International Red Cross or a member thereof, or by a medical doctor or any medical

service personnel, or by an investigator or intelligence officer, or by any other person

whom the commission finds to have been acting in the course of his duty when making

the report.

(3) Affidavits, depositions, or other statements taken by an officer detailed for that

purpose by military authority.

(4) Any diary, letter or other document appearing to the commission to contain

information relating to the charge.

(5) A copy of any document or other secondary evidence of its contents, if the

commission believes that the original is not available or cannot be produced without

undue delay. ...”

Justice Murphy went on to note:

Section 16, as will be noted, permits reception of documents, reports, affidavits,

depositions, diaries, letters, copies of documents or other secondary evidence of

their contents, hearsay, opinion evidence and conclusions, in fact of anything

which in the commission’s opinion “would be of assistance in proving or

disproving the charge,” without any of the usual modes of authentication. A

more complete abrogation of customary safeguards relating to the proof, whether

in the usual rules of evidence or any reasonable substitute and whether for use

in the trial of crime in the civil courts or military tribunals, hardly could have

been made. So far as the admissibility and probative value of evidence was

concerned, the directive made the commission a law unto itself.

In re Yamashita, 327 U.S. at 49 (Murphy, J. dissenting).

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Due Process – Search for an International Standard.

Although there may be little judicial review available to persons convicted by

U.S. military commissions, it would seem necessary to provide for trials that will be

seen as fundamentally fair under both U.S. and international standards regarding the

application of the law of war.226 Telford Taylor noted in evaluating World War II

war crimes trials:

It is of the first importance that the task of planning and developing permanent

judicial machinery for the interpretation and application of international penal

law be tackled immediately and effectively. The war crimes trials, at least in

Western Europe, have been held on the basis that the law applied and enforced

in these trials is international law of general application which everyone in the

world is generally bound to observe. On no other basis can the trials be regarded

as judicial proceedings, as distinguished from political inquisitions.227

There is some historical precedent from which an international norm regarding

procedural rights for accused war criminals might be derived. The Nuremberg

Tribunals provide a good starting point,228 as further refined by the International

Criminal Tribunals for Yugoslavia and Rwanda.229 Perhaps the most recent

embodiment of the requirements of the international law of war is to be found in the

procedures of the not-yet-operational International Criminal Court established by the

Rome Statute.230

The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals

were designed to be non-technical, allowing the expeditious admission of “all

evidence [the Tribunal] deems to have probative value.”231 This evidence included

hearsay, coerced confessions, and the findings of prior mass trials.232 While the

historical consensus seems to have accepted that the war crimes commissions were

226

The President realized the necessity of adhering to the Articles of War in convening the

military commission in Ex parte Quirin. See Evan J. Wallach, The Procedural And

Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide An

Outline For International Legal Procedure?, 37 COLUM. J. TRANSNAT’L L. 851, 854 n.11

(1999).

227

Telford Taylor, An Outline of the Research and Publication Possibilities of the War

Crimes Trials, 9 LA. L. REV. 496, 507 (1948-49) (cited in Wallach, supra note 226, at 852.)

228

See Wallach, supra note 226, at 860 (noting that the rules formulated in accordance with

the London Agreement of August 8, 1945, by the Allies setting trial procedures for German

war criminals, served as a model for subsequent tribunals). The rules used at the Nuremberg

trials were, in turn, largely modeled after American military commissions. See id. at 851.

229

See Major Marsha V. Mills, War Crimes in the 21st Century, 3 HOFSTRA L. & POL’Y

SYMP. 47, 55-56 (1999)(describing due process and evidentiary rules of the tribunals).

230

See, The Rome Statute of the International Criminal Court, Selected Legal and

Constitutional Issues, CRS Report, CRS Report RL30091 (Feb. 22, 1999).

231

See Wallach, supra note 226, at 860.

232

See id. at 871-72.

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conducted fairly,233 some observers argue that the malleability of the rules of

procedure and evidence could and did have some unjust results.234

Protocol I to the Geneva Convention provides, in article 75, a list of basic

guarantees that may be viewed as a baseline for an international standard of due

process:

Article 75.-Fundamental guarantees

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol,

persons who are in the power of a Party to the conflict and who do not benefit from

more favorable treatment under the Conventions or under this Protocol shall be

treated humanely in all circumstances and shall enjoy, as a minimum, the protection

provided by this Article without any adverse distinction based upon race, color, sex,

language, religion or belief, political or other opinion, national or social origin,

wealth, birth or other status, or on any other similar criteria. Each Party shall respect

the person, honor, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place

whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in

particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

(iii) Corporal punishment ; and

(iv) Mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading

treatment, enforced prostitution and any form of indecent assault;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict

shall be informed promptly, in a language he understands, of the reasons why these

measures have been taken. Except in cases of arrest or detention for penal offences,

such persons shall be released with the minimum delay possible and in any event as

soon as the circumstances justifying the arrest, detention or internment have ceased

to exist.

233

See id. at 852 (citing VIRGINIA MORRIS & MICHAEL SCHARF, 1 AN INSIDER’S GUIDE TO

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 9-10 (1995)).

234

See Wallach, supra note 226, at 869; Application of Homma, 327 U.S. 759, 760 (1946)

(Murphy, J. dissenting). But see Jonathan A. Bush, Lex Americana: Constitutional Due

Process and the Nuremberg Defendants, 45 ST. LOUIS U. L.J. 515, 526 (2001)(arguing that

in many ways, “the new [Tokyo and Nuremberg] tribunals’ charters gave defendants many

rights that went beyond anything allowed in the American system” at the time of the trials).

CRS-39

4. No sentence may be passed and no penalty may be executed on a person found

guilty of a penal offence related to the armed conflict except pursuant to a conviction

pronounced by an impartial and regularly constituted court respecting the generally

recognized principles of regular judicial procedure, which include the following:

(a) The procedure shall provide for an accused to be informed without delay of the

particulars of the offence alleged against him and shall afford the accused before and

during his trial all necessary rights and means of defense;

(b) No one shall be convicted of an offense except on the basis of individual penal

responsibility;

or omission which did not constitute a criminal offence under the national or

international law to which he was subject at the time when it was committed; nor

shall a heavier penalty be imposed than that which was applicable at the time when

the criminal offence was committed; if, after the commission of the offence,

provision is made by law for the imposition of a lighter penalty, the offender shall

benefit thereby;

(d) Anyone charged with an offense is presumed innocent until proved guilty

according to law;

(e) Anyone charged with an offense shall have the right to be tried in his presence;

(f) No one shall be compelled to testify against himself or to confess guilt;

(g) Anyone charged with an offence shall have the right to examine, or have

examined, the witnesses against him and to obtain the attendance and examination

of witnesses on his behalf under the same conditions as witnesses against him;

(h) No one shall be prosecuted or punished by the same Party for an offence in

respect of which a final judgement acquitting or convicting that person has been

previously pronounced under the same law and judicial procedure;

(i) Anyone prosecuted for an offence shall have the right to have the judgement

pronounced publicly; and

(i) A convicted person shall be advised on conviction of his judicial and other

remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict

shall be held in quarters separated from men's quarters. They shall be under the

immediate supervision of women. Nevertheless, in cases where families are detained

or interned, they shall, whenever possible, be held in the same place and

accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed

conflict shall enjoy the protection provided by this Article until their final release,

repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused

of war crimes or crimes against humanity, the following principles shall apply:

(a) Persons who are accused of such crimes should be submitted for the purpose of

prosecution and trial in accordance with the applicable rules of international law; and

(b) Any such persons who do not benefit from more favorable treatment under the

Conventions or this Protocol shall be accorded the treatment provided by this Article,

CRS-40

whether or not the crimes of which they are accused constitute grave breaches of the

Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other

more favorable provision granting greater protection, under any applicable rules of

international law, to persons covered by paragraph 1.

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Appendix A

Military Order of November 13, 2001.

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against

Terrorism

By the authority vested in me as President and as Commander in Chief of the Armed

Forces of the United States by the Constitution and the laws of the United States of

America, including the Authorization for Use of Military Force Joint Resolution

(Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United

States Code, it is hereby ordered as follows:

Section 1. Findings.

(a) International terrorists, including members of al Qaida, have carried out attacks

on United States diplomatic and military personnel and facilities abroad and on

citizens and property within the United States on a scale that has created a state of

armed conflict that requires the use of the United States Armed Forces.

(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist

attacks on September 11, 2001, on the headquarters of the United States Department

of Defense in the national capital region, on the World Trade Center in New York,

and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency

on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason

of Certain Terrorist Attacks).

possess both the capability and the intention to undertake further terrorist attacks

against the United States that, if not detected and prevented, will cause mass deaths,

mass injuries, and massive destruction of property, and may place at risk the

continuity of the operations of the United States Government.

(d) The ability of the United States to protect the United States and its citizens, and

to help its allies and other cooperating nations protect their nations and their citizens,

from such further terrorist attacks depends in significant part upon using the United

States Armed Forces to identify terrorists and those who support them, to disrupt

their activities, and to eliminate their ability to conduct or support such attacks.

(e) To protect the United States and its citizens, and for the effective conduct of

military operations and prevention of terrorist attacks, it is necessary for individuals

subject to this order pursuant to section 2 hereof to be detained, and, when tried, to

be tried for violations of the laws of war and other applicable laws by military

tribunals.

(f) Given the danger to the safety of the United States and the nature of international

terrorism, and to the extent provided by and under this order, I find consistent with

section 836 of title 10, United States Code, that it is not practicable to apply in

CRS-42

military commissions under this order the principles of law and the rules of evidence

generally recognized in the trial of criminal cases in the United States district courts.

(g) Having fully considered the magnitude of the potential deaths, injuries, and

property destruction that would result from potential acts of terrorism against the

United States, and the probability that such acts will occur, I have determined that an

extraordinary emergency exists for national defense purposes, that this emergency

constitutes an urgent and compelling government interest, and that issuance of this

order is necessary to meet the emergency.

Sec. 2. Definition and Policy.

(a) The term "individual subject to this order" shall mean any individual who is not

a United States citizen with respect to whom I determine from time to time in writing

that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international

terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have

as their aim to cause, injury to or adverse effects on the United States, its citizens,

national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i)

or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this

order.

(b) It is the policy of the United States that the Secretary of Defense shall take all

necessary measures to ensure that any individual subject to this order is detained in

accordance with section 3, and, if the individual is to be tried, that such individual

is tried only in accordance with section 4.

order who is not already under the control of the Secretary of Defense but who is

under the control of any other officer or agent of the United States or any State shall,

upon delivery of a copy of such written determination to such officer or agent,

forthwith be placed under the control of the Secretary of Defense.

Sec. 3. Detention Authority of the Secretary of Defense.

Any individual subject to this order shall be -(a) detained at an appropriate location designated by the Secretary of Defense

outside or within the United States;

(b) treated humanely, without any adverse distinction based on race, color, religion,

gender, birth, wealth, or any similar criteria;

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(d) allowed the free exercise of religion consistent with the requirements of such

detention; and

(e) detained in accordance with such other conditions as the Secretary of Defense

may prescribe.

Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals

Subject to this Order.

(a) Any individual subject to this order shall, when tried, be tried by military

commission for any and all offenses triable by military commission that such

individual is alleged to have committed, and may be punished in accordance with the

penalties provided under applicable law, including life imprisonment or death.

(b) As a military function and in light of the findings in section 1, including

subsection (f) thereof, the Secretary of Defense shall issue such orders and

regulations, including orders for the appointment of one or more military

commissions, as may be necessary to carry out subsection (a) of this section.

but not be limited to, rules for the conduct of the proceedings of military

commissions, including pretrial, trial, and post-trial procedures, modes of proof,

issuance of process, and qualifications of attorneys, which shall at a minimum

provide for -(1) military commissions to sit at any time and any place, consistent with such

guidance regarding time and place as the Secretary of Defense may provide;

(2) a full and fair trial, with the military commission sitting as the triers of both fact

and law;

(3) admission of such evidence as would, in the opinion of the presiding officer of

the military commission (or instead, if any other member of the commission so

requests at the time the presiding officer renders that opinion, the opinion of the

commission rendered at that time by a majority of the commission), have probative

value to a reasonable person;

(4) in a manner consistent with the protection of information classified or

classifiable under Executive Order 12958 of April 17, 1995, as amended, or any

successor Executive Order, protected by statute or rule from unauthorized disclosure,

or otherwise protected by law, (A) the handling of, admission into evidence of, and

access to materials and information, and (B) the conduct, closure of, and access to

proceedings;

(5) conduct of the prosecution by one or more attorneys designated by the Secretary

of Defense and conduct of the defense by attorneys for the individual subject to this

order;

CRS-44

(6) conviction only upon the concurrence of two-thirds of the members of the

commission present at the time of the vote, a majority being present;

(7) sentencing only upon the concurrence of two-thirds of the members of the

commission present at the time of the vote, a majority being present; and

(8) submission of the record of the trial, including any conviction or sentence, for

review and final decision by me or by the Secretary of Defense if so designated by

me for that purpose.

Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense.

Departments, agencies, entities, and officers of the United States shall, to the

maximum extent permitted by law, provide to the Secretary of Defense such

assistance as he may request to implement this order.

Sec. 6. Additional Authorities of the Secretary of Defense.

(a) As a military function and in light of the findings in section 1, the Secretary of

Defense shall issue such orders and regulations as may be necessary to carry out any

of the provisions of this order.

(b) The Secretary of Defense may perform any of his functions or duties, and may

exercise any of the powers provided to him under this order (other than under section

4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.

Sec. 7. Relationship to Other Law and Forums.

(a) Nothing in this order shall be construed to -(1) authorize the disclosure of state secrets to any person not otherwise authorized

to have access to them;

(2) limit the authority of the President as Commander in Chief of the Armed Forces

or the power of the President to grant reprieves and pardons; or

(3) limit the lawful authority of the Secretary of Defense, any military commander,

or any other officer or agent of the United States or of any State to detain or try any

person who is not an individual subject to this order.

(b) With respect to any individual subject to this order -(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the

individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any

proceeding, directly or indirectly, or to have any such remedy or proceeding sought

on the individual's behalf, in (i) any

court of the United States, or any State thereof, (ii) any court of any foreign nation,

or (iii) any international tribunal.

CRS-45

substantive or procedural, enforceable at law or equity by any party, against the

United States, its departments, agencies, or other entities, its officers or employees,

or any other person.

(d) For purposes of this order, the term "State" includes any State, district, territory,

or possession of the United States.

(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter,

to transfer to a governmental authority control of any individual subject to this order.

Nothing in this order shall be construed to limit the authority of any such

governmental authority to prosecute any individual for whom control is transferred.

Sec. 8. Publication.

This order shall be published in the Federal Register.

GEORGE W. BUSH

THE WHITE HOUSE,

November 13, 2001.

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Appendix B

Proclamation No. 2561.

DENYING CERTAIN ENEMIES ACCESS TO THE COURTS OF THE

UNITED STATES

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS the safety of the United States demands that all enemies who have

entered upon the territory of the United States as part of an invasion or predatory

incursion, or who have entered in order to commit sabotage, espionage or other

hostile or warlike acts, should be promptly tried in accordance with the law of

war;

NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United

States of America and Commander in Chief of the Army and Navy of the United

States, by virtue of the authority vested in me by the Constitution and the statutes

of the United States, do hereby proclaim that all persons who are subjects, citizens

or residents of any nation at war with the United States or who give obedience to

or act under the direction of any such nation, and who during time of war enter or

attempt to enter the United States or any territory or possession thereof, through

coastal or boundary defenses, and are charged with committing or attempting or

preparing to commit sabotage, espionage, hostile or warlike acts, or violations of

the law of war, shall be subject to the law of war and to the jurisdiction of military

tribunals; and that such persons shall not be privileged to seek any remedy or

maintain any proceeding directly or indirectly, or to have any such remedy or

proceeding sought on their behalf, in the courts of the United States, or of its

states, territories, and possessions, except under such regulations as the Attorney

General, with the approval of the Secretary of War, may from time to time

prescribe.

IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of

the United States of America to be affixed.

DONE at the City of Washington this 2d day of July, In the year of our

Lord nineteen hundred and forty-two, and of the Independence

[SEAL] of the United States of America the one hundred and sixty

sixth.

FRANKLIN D ROOSEVELT

By the President:

CORDELL HULL,

Secretary of State.

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Military Order of July 2, 1942.

APPOINTMENT OF A MILITARY COMMISSION

By virtue of the authority vested in me as President and as Commander in chief

of the Amy and Navy, under the Constitution and statutes of the United States,

and most particularly the Thirty-Eighth Article of War (U.S.C., title 10, sec.

1509), 1, Franklin Delano Roosevelt, do hereby appoint as a Military Commission

the following persons:

Major General Frank R. McCoy, President

Major General Walter S. Grant

Major General Blanton Winship

Major General Lorenzo D. Gasser

Brigadier General Guy V. Henry

Brigadier General John T. Lewis

Brigadier General John T. Kennedy

The prosecution shall be conducted by the Attorney General and the Judge

Advocate General. The defense counsel shall be Colonel Cassius M. Dowell and

Colonel Kenneth Royall.

The Military Commission shall meet in Washington, D. C., on July 8th, 1942, or

as soon thereafter as is practicable, to try for offenses against the law of war and

the Articles of War, the following persons:

Ernest Peter Burger

George John Dasch

Herbert Hans Haupt

Henry Harm Heinck

Edward John Kerling

Hermann Otto Neubauer

Richard Quirin

Werner Thiel

The Commission shall have power to and shall, as occasion requires, make such

rules for the conduct of the proceeding, consistent with the powers of military

commissions under the Articles of War, as it shall deem necessary for a full and

fair trial of the matters before it. Such evidence shall be admitted as would, in the

opinion of the President of the Commission, have probative value to a reasonable

man. The concurrence of at least two-thirds of the members of the Commission

present shall be necessary for a conviction or sentence. The record of the trial,

including any judgment or sentence, shall be transmitted directly to me for my

action thereon.

FRANKLIN D ROOSEVELT

THE WHITE HOUSE,

July 2, 1942.

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Military Order of January 11, 1945.

GOVERNING THE ESTABLISHMENT OF MILITARY COMMISSIONS

FOR THE TRIAL OF CERTAIN OFFENDERS AGAINST THE LAW OF WAR

AND GOVERNING THE PROCEDURE FOR SUCH COMMISSIONS

By virtue of the authority vested in me as President and as Commander in Chief

of the Army and Navy, under the Constitution and statutes of the United States,

and more particularly the Thirty-Eighth Article of War (10 U.S.C. 1509), it is

ordered as follows:

1. All persons who are subjects, citizens or residents of any nation at war with

the United States or who give obedience to or act under the direction of any such

nation, and who during time of war enter or attempt to enter the United States or

any territory or possession thereof, through coastal or boundary defenses, and are

charged with committing or attempting or preparing to commit sabotage,

espionage, hostile or warlike acts, or violations of the law of war, shall be subject

to the law of war and to the jurisdiction of military tribunals. The commanding

generals of the several service and defense commands in the continental United

States and Alaska, under the supervision of the Secretary of War, are hereby

empowered to appoint military commissions for the trial of such persons.

2. Each military commission so established for the trial of such persons shall

have power to make and shall make, as occasion requires, such rules for the

conduct of its proceedings, consistent with the powers of military commissions

under the Articles of War, as it shall deem necessary for a full and fair trial of the

matters before it: Provided, that

(a) Such evidence shall be admitted as would, in the opinion of the president of

the commission, have probative value to a reasonable man;

(b) The concurrence of at least two-thirds of the members of the commission

present at the time the vote is taken shall be necessary for a conviction or

sentence;

and preliminary hearings, shall not be deemed to apply to the proceedings;

(d) The record of the trial, including any judgment or sentence, shall be

promptly reviewed under the procedures established in Article 501/2 of the

Articles of War.

FRANKLIN D ROOSEVELT

THE WHITE HOUSE,

January 11, 1945.

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