HOMEWORK QUESTIONS
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Lectures to Accompany Luna and McCormack Chapter 8:
Military Detention and Trial1
By Dr. James Prescott
The GWOT has been characterized by acts of terrorism as well as armed conflict.
The use of the American armed forces overseas to fight terrorists and their
supporters has not been regular conflict between the armies of nation-states. Rather, it
has been a fight between western armed forces and various categories of civilians, many
of which received military-style training. These civilians have also used military-grade
weapons and IEDs (Improvised Explosive Devices).
This means that the laws and customs developed to deal with fighting nation-
states do not apply well to this reality. In the GWOT, the enemy combatants that our
military is fighting are neither soldiers nor purely civilians.
How to deal with captured terrorists and other enemy combatants has posed
complex problems for the United States in terms of both domestic and international
law. Some have been dealt with through the civilian court system, as we have seen.
But others have been dealt with through military tribunals, as we will examine in
Chapter 8.
As your authors say, “Beginning in early 2002, individuals captured in
Afghanistan and elsewhere were taken to the U.S. Naval Base in Guantanamo Bay,
Cuba, with a few individuals detained at military facilities in the United States. In the
coming years, several Guantanamo detainees would be deemed eligible for tiral by
military commissions.”2
“These actions implicated both the international law of war and federal
constitutional and statutory law.”3
“These and other rules can be quite difficult to apply even in traditional armed
conflicts, making it unsurprising that the political branches and the courts have
struggled over the legal complexities raised by the war on terrorism.”4
“In ordering military detention and trial for alleged terrorists and their
collaborators, the U.S. government relied upon court decisions stemming from prior
armed conflicts.”5 As we will see, the federal courts reinterpreted the rules established
in the period prior to 1951 during the course of the GWOT.
We have looked at civilian interrogation and civilian prosecution of terrorism
suspects. Chapter 8 examines something different: military detention of terrorism
suspects and trial of terrorism suspects by military commissions.
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A military commission is a military court established for a particular purpose,
such as determining a status under the laws of war/armed conflict. Usually, they are set
up outside the U.S. in areas where the civilian courts are not operating. In the United
States, the UCMJ (Uniform Code of Military Justice) provided authority to military
commissions to try cases of aiding the enemy and spying, for example.6
These have rules different from the civilian world, and we have to study them as
well in order to understand terrorism in the law.
The federal government has the power to detain enemy forces captured on the
battlefield during military operations. It also has the power to try those that violate the
international law of war. Such persons have fewer rights than individuals put through
the civilian criminal justice system.
Legitimate combatants of recognized nation-states are said to possess combat
immunity, which means that they cannot be tried or prosecuted for participating in
armed conflict.7 However, legitimate combatants can be prosecuted for violating the
laws and customs of war through military tribunals or commissions. “Usually, civilian
non-combatants are not subject to military seizure, detention, or trial, although civilians
who directly participate in a conflict may forfeit their protected status.”8
As your authors note, “A month after 9/11, President Bush issued an order
authorizing military detention of suspected terrorists and their collaborators, as well as
military trials for those who violated the law of war.”9 This was the Military Order of
November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism.
After the U.S. military invaded Afghanistan in 2001, terrorist suspects were
apprehended by military forces. These suspects “…were taken to the U.S. Naval base in
Guantanamo Bay, Cuba, with a few individuals detained at military facilities in the
United States.”10 Many were tried by military commissions; others were simply
questioned and indefinitely detained. “These actions implicated both the international
law of war and federal constitutional and statutory law.”11
“In ordering military detention and trial for alleged terrorists and their
collaborators, the U.S. government relied upon court decisions stemming from prior
armed conflicts.”12 The difficulty here has been that federal courts today have chosen
not to completely abide by these precedents.
So let us examine some of the precedents for applying military and trial as a
result of armed conflict by the U.S. government between 1861 and 1950. We have two
cases from the Civil War era on this: Ex parte Merryman (1861) and Ex parte Milligan
(1866).
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Ex parte means “for one party,” which is a court decision made for the benefit of
only one of the two parties involved in a legal dispute. It is typically made in a hearing
in which only one party is present, as when the person filing the petition is in prison or
other official custody.13
The first case is Ex parte Merryman (1861), a U.S. Circuit Court of Appeals case.
The case arose because former President Lincoln suspended the writ of habeas corpus
in an effort to combat secession by Southern states. His strategy was to use the U.S
military to round up people suspected of working to interfere with the federal
government’s enforcement of laws.
The writ of habeas corpus is a court order “…directing that a person held in
custody be brought before the court to determine if he or she is being lawfully held.”14
This is a very important right under Anglo-American law—the ability to challenge the
legality of one’s confinement. If you can’t challenge your confinement, you could
potentially be locked up indefinitely. Article I of the U.S. Constitution allows Congress
to suspend habeas corpus during times of national emergency. The president does not
possess this power under the Constitution, however.
Merryman was arrested and confined by the military for conspiracy to blow up
railway and telegraph lines. The U.S. Circuit Court ruled that President Lincoln had
exceeded his authority and that only Congress can suspend habeas corpus. However,
the decision was ignored by the Lincoln administration. In any event, in 1863, Congress
enacted a law allowing the president to suspend the writ of habeas corpus.15
The second case from the Civil War era on this was Ex parte Milligan (1866). In
this case, the U.S. Supreme Court enunciated fundamental principles regarding the
extent to which civilians apprehended within the United States outside combat zones
can be detained and tried by military forces. Read pages 444-446 of your textbook to
study the case in more detail.
In summary, Milligan was a civilian living in Indiana. Milligan and two others
were involved in a plot to engage in insurrection in Illinois and to raid a prison camp
holding Confederate prisoners of war. The plan was to violently attack the U.S.
government in that area. Milligan and his co-conspirators were caught before the plan
could be completed. They were charged and convicted by a military commission
established under the order of President Lincoln, not a civilian court, and sentenced to
death. Milligan appealed to the Supreme Court on a habeas corpus petition.
The U.S. Supreme Court reversed Milligan’s conviction and sentence. The Court
ruled that civilians accused of crimes outside a war zone must be charged and tried by
the regular civilian criminal justice system, not a military court or commission. The
Court held that neither Congress nor the president had the authority to establish
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military commissions to try civilians in areas where the civilian courts are open and
operating. This is especially true for civilians apprehended within the United States.16
Two other highly relevant cases that were used as precedent prior to the 9/11
attacks are the Ex Parte Quirin case from 1942 and the Johnson v. Eisentrager case from
1950. Both of these cases arose out of World War II.
In 1942, following the declaration of War with Nazi Germany the previous year,
the Germans sent eight men to the east coast of the United States in a U-boat. One
group came ashore in New York state on Long Island, and another group came ashore
in Florida near Jacksonville.
The purpose of their mission was to engage in sabotage against American war
plants and facilities. All eight spoke good English and had previously lived in the
United States. “Each man had undergone training in Germany and had been paid by
German officials.”17 When they landed, they were wearing Germany military uniforms
and carrying explosives. Soon after landing, they changed into civilian clothes.
American FBI officials arrested all eight Germans before they could pull off their
planned sabotage. They were handed over to U.S. military authorities after questioning.
President Roosevelt considered this attempted sabotage by enemy combatants wearing
civilian clothing to be serious violations of the laws and customs of war. Remember that
this was World War II—an actual declared war.
Accordingly, President Roosevelt ordered that the Germans were to be tried by a
military commission, rather than in civilian courts, “…on the charges of violating the
law of war, communicating intelligence to the enemy, spying, and conspiracy to commit
these offenses.”18
“In a petition for habeas corpus, the men argued that the President lacked
statutory or constitutional authority to try them by military tribunal.”19
Remember the Civil War precedents of Milligan and Merryman? The Supreme
Court ruled that civilians accused of crimes outside a war zone must be charged and
tried by the regular civilian criminal justice system, not a military court or commission.
The Court held that neither Congress nor the president had the authority to establish
military commissions to try civilians in areas where the civilian courts are open and
operating.
Problem for the Germans: in the Quirin case, the Supreme Court did not agree
that the Milligan precedent applied. First, Milligan was a civilian. Milligan was not part
of the armed forces of the Confederate States or any other enemy of the United States.
Thus, the laws of war and a military tribunal should not apply to him.
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On the other hand, the Germans were in the German military. The Supreme Court
recognized that wearing civilian clothing, spying, and attempted sabotage are all
violations of the laws and customs of war, especially when conducted by members of a
foreign military during a declared war. The Germans were recognized enemies of the
United States by virtue of serving in a foreign military. Thus, trial in civilian courts is
not legitimately open to them.
Congress “…had explicitly provided military tribunals with jurisdiction in…”20
enforcing the laws and customs of war. “Moreover, an important incident of war is the
executive’s ability to ‘seize and subject to disciplinary measures those enemies who in
their attempt to thwart or impede our military effort have violated the law of war.’”21
Thus, “…the Justices unanimously concluded that the military commission did
have jurisdiction in this case.”22 The Supreme Court did, however, distinguish this case
from Milligan. The Supreme Court held that “Over the course of American military
history, the government had ‘recognized that those who during time of war pass
surreptitiously from enemy territory into our own, discarding their uniforms upon
entry, for the commission of hostile acts involving destruction of life or property, have
the status of unlawful combatants punishable as such by military commission.’”23
The Supreme Court went to the decide that their decision “…was so accepted at
home and abroad, as well as by international law experts, as to be a rule or principle of
the law of war. It did not matter that the alleged wrongdoing did not occur in a theater
of active military operations. Nor did it matter that one of the [captured
Germans]…claimed to be an American citizen.”24
American “Citizens who associate themselves with the military arm of the
enemy government, and with its aid, guidance, and direction enter this country bent on
hostile acts are enemy belligerents within the mean of the Hague Convention and the
law of war.”25
The Hague Conventions were held in 1899 and 1907 and marked the first real
efforts to get nation-states to agree on the laws and customs of war. They were used
also to justify the Nuremberg Trials in 1945.
Johnson v. Eisentrager (1950) is another U.S. Supreme Court case arising as a part
of WWII. The case involved German soldiers who continued fighting allied forces in
China after Germany has surrendered in May 1945 but before Japan surrendered later
that year. In other worlds, WWII was still going on, but Germany had surrendered
earlier that year. Japan did not surrender until September.
The Germans were captured in China and tried before a military commission for
violations of the law of war (mainly continuing to fight after the valid surrender of their
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nation-state). They were transferred to a U.S. military prison in Germany. A habeas
corpus petition was filed in U.S. District Court challenging the validity of their
confinement in prison. The U.S. District Court dismissed the petition, but a U.S. Circuit
Court of Appeals reversed, saying that “…the judiciary must have the authority to
determine the legality of imprisonment for crime.”26 The U.S. Supreme Court reversed,
saying that the Germans had no right to challenge the legality of their imprisonment via
habeas corpus.
The most serious charges against the Germans “…involved breaching the terms
of an act of surrender, a long-established violation of the laws of war.”27 The Supreme
Court recognized the principle established in Quirin “…that a military commission is a
lawful tribunal to adjudicate enemy violations of the law of war.”28
The Supreme Court justified its reversal of the U.S. Circuit Court of Appeals and
their support of the federal government’s position in their opinion in Johnson v.
Eisentrager. The Court differentiated between the constitutional rights of citizens, legal
aliens, legal enemy aliens, and nonresident aliens.
The Court stated that an alien’s constitutional protections depend upon his or
her legal status in terms of (1) their right to be inside the U.S. and (2) upon “…an alien’s
presence within the territorial jurisdiction of the courts.”29 Thus, there is an implied
hierarchy of rights: U.S. citizens would have the greatest rights, while nonresident aliens
would have the least rights. Legal aliens would have greater rights than legal enemy
aliens.
Executive actions involving enemy aliens and nonresident aliens would naturally
be greater during wars/armed conflicts. Read the bottom of page 450 in your textbook:
nonresident enemy aliens would have the lowest or least rights under American law—
not even the right to access American courts. Thus, the German prisoners in this case have
no rights to challenge their confinement in American courts because they are enemy aliens
that have never been to the United States and who were captured by American forces in
a foreign country as prisoners of war. These prisoners were tried and convicted by
military commission for violations of the laws of war committed in a foreign country and then
imprisoned outside the United States.30
Thus, the Germans had “no leg to stand on” according to the Supreme Court.
Does this principle seem pretty solid and emphatic to you? What is the takeaway from
this precedent? Foreigners fighting the U.S. government caught overseas by the U.S.
military can be tried in military tribunals for violations of the laws of war and such
foreigners can be legally imprisoned outside the United States for their offenses. Even
more, these foreigners cannot use habeas corpus to challenge the validity of their
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detentions in American courts. This is the principle established by the U.S. Supreme
Court in 1950.
Former President Bush relied upon this precedent in taking actions against al
Qaeda operatives. The problem with this strategy became manifest when the U.S.
Supreme Court determined that the War on Terrorism was different enough from
WWII to make the Eisentrager precedent much weaker, as we will see.
So next we will cover some more court precedents in terms of the legality of
military detentions. There are several important cases on this subject covered in
Chapter 8: Hamdi v. Rumsfeld (2004), Rumsfeld v. Padilla (2004), Rasul v. Bush (2004), Al-
Marri v. Pucciarelli (2007), Boumedine v. Bush (2007), and Hamdan v. Rumsfeld (2006).
Some of these cases look at domestic military detention. The others look at
military detention abroad.
First, it must be restated that the Supreme Court decided that the War on
Terrorism was not the same as the open international war of WWII. The lines are more
“blurry” today, in other words. Although the Bush administration relied upon the
WWII precedents in making policy on detention and prosecution to deal with the 9/11
attacks, the federal courts held that the War on Terrorism required a modification to
these precedents.31
We will first look at the legal validity of domestic military detention. This is about
military detention of either U.S. citizens or resident aliens arrested inside the United
States. After that, we will look at the validity of military detention abroad under the law.
The first modern case that we will cover on this issues is Hamdi v. Rumsfeld in
2004. Yaser Hamdi was a U.S. citizen that was engaged in fighting on behalf of the
Taliban. Hamdi was captured in Afghanistan by anti-Taliban forces and turned over to
the U.S. military. He was interrogated and then sent to Guantanamo. Later, Hamdi was
sent to a military prison inside the United States. Then, a habeas corpus petition
challenging his detention was filed.
Because Hamdi was engaged in fighting on behalf of the Taliban, he was
classified as an enemy combatant (a person who is part of a hostile force against the
U.S. and who also engages in armed conflict against the U.S.).32 Hamdi denied this—he
said that he was there doing relief work and that he never engaged in combat. Because
he was classified as an enemy combatant, he was not formally charged with a crime and
was not given access to an attorney.
The trial court ordered Hamdi released, but the government appealed to the U.S.
Circuit Court of Appeals, which upheld the government’s position that Hamdi was an
enemy combatant. Hamdi then appealed to the U.S. Supreme Court.
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The Supreme Court ruled that the president has the power to detain and
imprison enemy combatants for the duration of the conflict. This is true of both U.S.
citizens and foreign nationals. However, U.S. citizens have the right to challenge their
enemy combatant designation as part of due process and habeas corpus rights. To
comport with due process, U.S. citizens accused of being enemy combatants must
receive notice of the charges and an opportunity to challenge the designation before a
neutral decision maker. After the ruling, the federal government engaged in a plea
bargain with Hamdi—he was released and sent to Saudi Arabia. Hamdi agreed to
renounce his U.S. citizenship and to submit to travel restrictions.
Next is the case of Jose Padilla. Padilla was a U.S. citizen. The U.S. government
found out about Padilla as a result of waterboarding a captured al Qaeda operative.
Padilla was questioned in Chicago when he arrived in the U.S. from an overseas flight.
He had more than $10,000 in cash in his possession at the airport. Padilla was
supposedly involved in an al Qaeda plot to set off a “dirty bomb” inside the United
States.
Padilla was detained on a material witness warrant involving the 9/11 attacks.
He was designated an enemy combatant, and was placed in a military prison in South
Carolina for four years. His attorney filed a habeas corpus petition. The U.S. Supreme
Court ruled in 2004 (Rumsfeld v. Padilla) that the Authorization for the Use of Military
Force (AUMF) did not allow for the military detention of U.S. citizens arrested inside
the United Sates. Padilla was not arrested in a foreign country or on the battlefield.
Thus, this is a criminal justice matter, not a military matter, according to the Supreme
Court.
After this decision, the federal government “…announced that military detention
was no longer necessary and that Padilla would be transferred to the custody of federal
law enforcement for the purposes of criminal prosecution...”33 Strangely, the criminal
charges did not involve fighting U.S. forces or the “dirty bomb” plot---Padilla was
charged with conspiracy and material support. He received 17 years in prison after his
conviction. It has been argued that the apparent true purpose of Padilla’s detention was
to obtain intelligence information about al Qaeda.
Our next case involving domestic military detention as part of the GWOT is the
case of Ali al-Marri. We will look at the 2007 case of Al-Marri v. Pucciarelli. This is a U.S.
Circuit Court of Appeals case.
The federal government only learned about al-Marri as a result of the “enhanced
interrogation” of Khalid Sheik Mohammed (KSM). Al-Marri came to the United States
the day before the 9/11 attacks on a student visa to attend a university in Illinois. Al-
Qaeda sent him to the United States to be a “sleeper agent.” He was arrested in
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December 2001 as a material witness in the investigation of the 9/11 attacks. He was
detained as material witness in both Illinois and New York City for more than one year.
Al-Marri was in possession of false identification. During the course of a search
of al-Marri’s computer, the FBI found more than 1,500 stolen credit card numbers with
corresponding names of the account holders. This was the basis for charging him with
credit card fraud, making false statements to a federally insured bank, and identity
fraud.
Federal investigators also found information on his computer about how to
construct a weapon of mass destruction (WMD) that would deploy hydrogen cyanide.
There was also information stored on his laptop about conducting jihad. It was
demonstrated that he had communicated with KSM by phone and email and a Dubai-
based al-Qaeda paymaster.
Under the AUMF (which authorized military detention of al Qaeda operatives
captured inside the U.S.), former President Bush designated al-Marri as an enemy
combatant subject to military detention. At that point, the federal government
dismissed his criminal indictments.
Al-Marri was put in military custody at a U.S. Naval facility in South Carolina.
From that detention, al-Marri filed a habeas corpus petition in U.S. District Court. It was
only at that point that an American intelligence official disclosed a summary of the
evidence against al-Marri, which is presented on page 463 of the textbook.
The District Court rejected al-Marri’s habeas corpus petition in 2006. The District
court ruled that the president had the authority under the law to detain a non-U.S.
citizen apprehended in the United States as an enemy combatant. Further, the court
held that there was sufficient evidence to detain him as an enemy combatant. Al-Marri
appealed to the U.S. Circuit Court of Appeals by making the argument that the AUMF
did not allow the president to detain civilians.
The Circuit Court essentially decided against al-Marri in 2008. It was ruled that
the president did indeed have sufficient authority pursuant to congressional
authorization to detain al-Marri as an enemy combatant if the allegations against him
were true. But the Circuit Court did not rule of the truth of that. The court further ruled
that al-Marri had not received sufficient due process procedures to challenge is
designation as an enemy combatant.34 The Circuit Court noted that al-Marri was
apprehended in the United States, unlike Hamdi, who was captured overseas and
engaged in hostilities against American forces.
For this reason The court decreed that al-Marri should be provided the
opportunity to examine government evidence that he did the things discussed on pages
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464-465 in open court, rather than relying upon documents filed by intelligence officials
without cross examination and other elements of due process. If the state secret
privilege would be harmed by doing this, this should be determined in a trial court
under CIPA rules and procedures, the court appears to mean.
Five months later, in December 2008, the U.S. Supreme Court agreed to hear the
case. Incoming “…President Obama ordered a factual and legal review of the basis for
al-Marri’s detention as an enemy combatant, as well as the identification and evaluation
of alternative approaches, which culminated in the filing of criminal charges back in
Illinois.”35 In other words, former President Obama chose the civilian criminal justice
option for a-Marri. By doing so, the federal government requested that the Supreme
Court “…to dismiss al-Marri’s case and authorize his transfer to civilian custody to
stand trial, which the Court granted in March 2009.”36
This seemed to be what al-Marri wanted, or perhaps he was tired. In any event,
he plead guilty to conspiracy to provide material support to a Foreign Terrorist
Organization (FTO) and was sentenced to more than 8 years in federal prison. It would
have been more, but he received credit for the 7+ years that he has already served in
military and civilian detention. He was released in 2015 and moved to Qatar.
Next, we will look at the controversial detention provisions contained in the
NDAA (National Defense Appropriations Act) of 2012. In addition to providing
funding to support military operations, the law contained a provision allowing the
indefinite detentions of U.S. citizens and legal aliens captured in the United States. The
NDAA defines and clarifies who is subject to detention under the AUMF. As Luna and
McCormack say, “Depending upon one’s perspective,…NDAA either simply clarifies
existing law or instead greatly expands the scope of the war on terrorism.”37
The NDAA allows the detention of persons involved with the 9/11 attacks in
addition to persons who “substantially supported al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States…”38 While former
President Obama stated that he would not use this power to indefinitely lock up U.S.
citizens without trial, Congress argued that the powers were not new nor expanded---
that it simply clarified the AUMF due to court decisions interpreting the latter
differently. So far, this law has not been used to expand military detentions. This may
change under a new administration.
Next, it is necessary to examine the controversial topic of military detention
abroad as part of the Global War on Terrorism.
Based upon the Eisentrager precedent, the Bush administration decided to use the
U.S. Naval base in Guantanamo Bay, Cuba as a holding and interrogation center for
enemy combatants caught by U.S. forces overseas during the course of the war on
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terrorism. In January 2002, the first detainees began to arrive in Cuba. About 800
terrorism detainees have been sent there over the years from 48 different countries.
However, most are from middle-eastern nations, especially Yemen, Saudi Arabia, and
Afghanistan.
Most detainees were questioned and released either back to their native countries
or to other countries willing to accept them. Under the original plan of the Bush
administration, the remaining detainees were either to be tried by military commissions
or to be detained indefinitely for the purpose of incapacitation. Not surprisingly, there
has been extensive litigation on Guantanamo in terms of the legal status and due
process rights of the detainees.
In 2001, the Dept. of Justice’s Office of Legal Counsel advised the Bush
administration that members of foreign terrorist organizations such as al Qaeda and the
Taliban were not covered by the Geneva Conventions, and that they also did not qualify
as POWs (prisoners of war). According to this advice, these things were true because
such persons belonging to non-state organizations cannot be party to international
agreements regarding war. Also, Common Article 3 did not apply because the conflicts
were international in scope.
At first, habeas corpus petitions filed by the detainees were rejected and
dismissed by federal trial courts based upon the Eisentrager precedent—the idea was
“that habeas corpus does not extend to aliens held in enemy custody outside of [the]
U.S…”39
The problems for the Bush administration came on appeal—the Ninth Circuit
Court of Appeals found that the detainees did have the right to habeas corpus, because
the base at Guantanamo is U.S. territory. Remember that in Eisentrager, the Germans
were held outside the United States.
The U.S. Supreme Court agreed with this reasoning in the 2004 case of Rasul v.
Bush. In Rasul v Bush, the Court held that Eisentrager did not apply because the prisoners
at Guantanamo (Kuwait and the United Kingdom in the case) were not from countries
formally at war with the United States; they had not been afforded access to any type of
tribunal [even a military commission]; they denied engaging in war/armed conflict
with the U.S., and they were imprisoned for more than two years in territory controlled
by the United States. Thus, every person, regardless of citizenship, had the right to file a
habeas corpus petition from Guantanamo.
The Supreme Court went to great lengths to distinguish Rasul from Eisentrager.
The Germans in the latter case had been caught engaging in active hostilities which they
did not deny. Plus, they had been tried and convicted by military commission. The
Guantanamo detainees had not been tried or convicted, plus they were held in U.S.
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territory. It is thus appropriate to have a federal court determine their status, according
to the Supreme Court’s ruling.
Two things happened in reaction to this decision: (1) the Bush administration
moved to try some detainees by military commissions, while others had their enemy
combatant status officially determined, and (2) Congress tried to support the Bush
approach by passing a law (Detainee Treatment Act of 2005 [DTA]) to get around the
decision. Basically, there was a backlash against the Rasul decision---there was a feeling
by the elected branches that the Supreme Court was too sympathetic to the detainees.
The first part of this reaction was that the Bush administration acted on its own
initiative. Six persons were charged with violations of the laws of war (like the Germans
in Eisentrager) and set for trial by military commissions. The remaining detainees were
sent before newly created CSRTs (Combat Status Review Tribunals) to determine
whether or not a given detainee was or was not an enemy combatant (someone who
was part of or involved with supporting the Taliban or al Qaeda.40 By this time, “enemy
combatant” had been redefined as “an individual who was part of or supporting
Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the
United States or its coalition partners.”41
The Dept. of Defense set up the CSRTs composed of three military officers
charged with using the preponderance of the evidence standard to determine whether
or not a given detainee was an enemy combatant. A total of 581 persons were put
through the CSRT tribunals. 39 were found not to be enemy combatants.42
In terms of due process rights, each detainee had the right to view non-classified
information about their initial classifications as enemy combatants, and they had the
right to speak in their own defense. They were not given the right to an attorney, but
instead were provided access to a military officer who would act as their “personal
representative” to assist in presenting their case to the tribunal.
The federal rules of evidence did not apply, and the tribunal could, if it chose,
rely upon classified intelligence information that was not disclosed to the detainee.43
Therefore, it should not be surprising that more than 90% were found to be enemy
combatants.
In addition to the CSRTs, the Dept. of Defense set up Administrative Review
Boards (ARBs) to look each year into the cases of each enemy combatant housed at
Guantanamo to determine if their continued detention was necessary. Specifically, the
ARBs looked at a detainee’s intelligence value, the threat posed to the United States, etc.
Based upon this assessment, the ARB would then recommend that the detainee
continue to be locked up at Guantanamo, transferred for civilian prosecution, or
released.
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Approximately 85% were continued for Guantanamo detention, with only 14 out
of 1100 recommended for release and 31 referred for criminal prosecution. Based upon
these numbers, it is a fair assessment to conclude that the primary goal or objective of
Guantanamo was incapacitation, rather than punishment or retribution. The Bush
administration took these actions on its own initiative, as noted above.
Meanwhile, Congress enacted the DTA (Detainee Treatment Act) of 2005 in an
effort to repudiate the Rasul decision. The DTA formally supported and endorsed the
Bush administration’s decision to establish the CSRTs. Also, it stipulated that the U.S.
Circuit Court for the D.C. Circuit was the only federal court with the jurisdiction to
review whether or not the CSRTs performed their jobs correctly.44
Going even further, the DTA attempted to eliminate habeas corpus review for
detainees in the federal courts. Even though Congress has the authority to establish and
to limit the jurisdiction of the federal courts, the federal courts do not appreciate efforts
to Congress to do so. Essentially, the federal courts do not like it when Congress tried to
limit their authority to hear cases. For that reason, the federal courts have sometimes
made decisions to “strike back” at the elected branches of government.
One such example occurred in Hamdan v. Rumsfeld (2006). Hamadan challenged
the military commissions system. In review, a military commission is essentially a
military court established for a particular purpose, such as determining a status under
the laws of war. Usually, military commissions are set up outside the United States in
areas where then civilian courts are not operating. The Detainee Treatment Act of 2005
retroactively approved the Combat Status Review Tribunals as a military commission
set up at Guantanamo. Further than that, the DTA eliminated the jurisdiction of federal
courts to hear habeas corpus petitions from the Guantanamo detainees.45
As noted above, former President Bush ordered that Guantanamo detainees be
tried by military commission. In 2006, Bush announced that 6 detainees, including
Salim Hamdan, would be tried by military commission. Hamdan was Osama Bin
Laden’s bodyguard and driver. He was charged with conspiracy and receiving
weapons training at an al Qaeda camp, among lesser offenses.
Hamdan filed a habeas corpus petition in federal court before the DTA was
passed. He alleged that he was entitled to prisoner of war status under the Geneva
Conventions and that the military commission (CSRT) violated the UCMJ (Uniform
Code of Military Justice) because the latter did not make conspiracy a crime.
The U.S. Supreme Court agreed with Hamdan and went even further. The Court
held that the military commission violated the Geneva Conventions, because they were
not a regularly constituted court—that is a military court set up in accordance with the
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laws already in force. The military commission established by President Bush had not
been authorized by Congress at the time that it was formed.
The Supreme Court also ruled that Common Article 3 of the Geneva
Conventions applied to Hamdan. Since Congress had not authorized military
commissions, Bush’s power was at its lowest ebb.
This case was decided in 2006. Remember that in 2005, Congress reacted to the
Rasul decision by enacting the Detainee Treatment Act, which took away habeas corpus
rights from Guantanamo detainees. Hamden got “under the wire,” because he filed his
petition prior to the DTA going into effect.
In further reaction to the Supreme Court in the Hamdan case, Congress again
passed a new law called the Military Commissions Act of 2006. This law further
limited habeas corpus petitions in the federal courts. Read the top of page 479 in your
textbook. This led to the case of Boumedine v. Bush in 2007. Basically, the U.S. Supreme
Court declared that the Guantanamo detainees still possessed habeas corpus rights
despite federal law clearly stating otherwise. The Court held that the Constitution gave
them the power to decide the case, regardless of the 46fact that the jurisdiction of the
federal courts is set by Congress.
In response to these decisions, Congress once again passed laws in an effort to
work around the Supreme Court rulings. The Military Commissions Act formally
established military tribunals to deal with the Guantanamo detainees in response to the
Hamdan decision. Under the 2006 law, military commissions are headed by a military
judge. A panel of five military officers must vote on the guilt or innocence of the
detainee. If the death penalty is sought by the government, 12 military officers must
hear and vote on the case. The standard of proof is beyond a reasonable doubt. The
defendant has the right to a free military attorney. The defendant also has the right to be
present at all times and the right to confront and cross-examine witnesses. In terms of
classified information, the CIPA procedures apply as in the regular federal courts.
The idea here was to set up a so-called “regularly constituted court” to overcome
the Supreme Court’s objections. Persons classified as “alien unprivileged enemy
belligerents” are susceptible to trial by military commissions. These are persons who
have “engaged in hostilities against the U.S. or is coalition partners,” have
“purposefully and materially supported hostilities against the U.S. or its coalition
partners,” or “was a part of al Qaeda at the time of the alleged offense.”47
To convict a detainee and to imposed a sentence of up to 10 years in prison
requires a 2/3 vote of the military officer jury. For more than 10 years, it requires a ¾
vote. To impose the death penalty, a unanimous vote is required.
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The Military Commissions Act established an appeals process as well. Those
convicted may appeal the sentence to the U.S. Court of Military Commission Review,
which is a special military appellate court composed of three military judges. The
decision of this body can be appealed to the U.S. Circuit Court of Appeals in
Washington, DC. In theory, the decision can be again appealed to the U.S. Supreme
Court.
After the Military Commissions Act was passed, former President Bush re-
started the commissions, again gaining some convictions. When Barack Obama became
president in 2009, he immediately suspended military commissions until a review was
completed. Six months later, Obama announced that he was re-start the military
commissions and would use them along with the regular federal courts to deal with the
Guantanamo detainees. When possible, Obama favored taking detainees to the regular
federal courts.
Former President Obama persistently tried to close Guantanamo, but Congress
did not allow this to occur. Congress has enacted a law to prohibit spending tax dollars
to transfer Guantanamo detainees to mainland prisons. President Trump is a strong
supporter of keeping the base open.
Conservatives favor the use of military commissions for Guantanamo detainees
because it is quicker and cheaper than the regular civilian trial court process. They
argue that this is more appropriate forum for enemy combatants who have violated the
laws and customs of war. Liberals want federal courts to make these determinations,
because it is more open and adversarial. They say that trials in regular civilian courts
better protect the rights of Guantanamo detainees. Once again, “where you stand
depends on where you sit.”
The Supreme Court has taken the position of Ex parte Milligan in recent years—
persons accused of crimes should be tried by civilian courts whenever possible.
Now we will try to clear up some terminology from the post-9/11 court
decisions and determinations made by the Bush administration. “Enemy combatants
come in many shapes and forms. They can be paramilitary, militia, mercenary, rebel,
revolutionary, guerrilla, terrorist, or insurgent. They can be women and children,
criminals and delinquents, sympathizers and supporters, or disabled and
deranged. They can be part of previously unknown networks and subcultures. How
does one distinguish, theoretically, ethically, and appropriately, "legals" from "illegals"
among the many combatants one encounters? The answer is that for many years, the
Hague Regulations and Protocols made the following distinctions:
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(1) lawful combatants
(2) unprivileged belligerents
One's conduct on the battlefield determined if one was a combatant, and one's status as a member of an armed force determined belligerency. Today, those distinctions are not easily made, and the latest addition to our vocabulary is the phrase "unlawful enemy combatant." This awkward phrase, as many critics of the U.S. approach have pointed out, actually represents a long record of people in questionable status categories -- pirates, spies, saboteurs, bandits, brigands, bushwhackers, and so on. Their behavior often defies categorization, but what is certain is that prisoner of war (POW) status is, and should always be, restricted to lawful combatants. Unlawful combatants are difficult to distinguish from ordinary criminals who should be held accountable at ordinary criminal law. There are, of course, many difficulties, challenges, and debates over how to establish lawful accountability over unlawful actors.
It may be helpful to clear up what the term "unlawful" means. Those people ascribed the status of "unlawful combatant" (sometimes called unprivileged combatant, irregular soldier, or…"free shooter" or armed resistance fighter) are usually cases of doubt as to whether they should be granted POW (Prisoner of War) status or criminal status. In other words, the reference is to someone in-between two statuses, someone in-between a POW (military enemy) and a criminal (societal menace). In scientific terms, an in- between category is technically a typological anomaly where the endpoints are continuous rather than discrete); and in lay terms, an in-between category is called "limbo." Under Geneva Convention III Articles 4 and 5, an "unlawful combatant" is simply defined as someone who commits belligerent acts but does not qualify as a lawful combatant. Geneva III urges, but does not require, a "detaining power" grant unlawful combatants POW status. Further, Geneva IV holds they should be treated humanely and receive a fair trial, especially if they qualify as a "protected person" which occurs when the detaining power is satisfied about its suspicions and has concluded its investigation that the person is more of a social menace than military enemy.
It may also be helpful to clear up what the term "enemy" means. Some "illegal combatants" are not quite enemy and not quite criminal. By most definitions, an enemy is a person who fights by military means. The problem, however, is that illegal (enemy) combatants are civilian fighters who pursue military objectives outside the laws of war. That is, they engage in ambushes, skirmishes, sabotage, raids, and other irregular rear-guard actions such as scouting for the enemy. As rear-guard actors, they often possess a kind of raw ruthlessness which comes from not being adequately trained, compensated, or supported for their actions. They may have received some training, but more likely they have learned secretly or vicariously just as some learning theories in criminology say criminals rehearse their actions mentally beforehand. They are frequently
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volunteers, part-timers, or infiltrators. They exemplify "asymmetric warfare" at its finest, exploiting every possible weakness of those they secretly oppose or whom their allies, the "real" enemy, is fighting…that such "fifth columns" are often more dangerous and destructive than regular fighting forces.”48
As you can see, how to deal with captured terrorists and other enemy combatants has posed complex problems for the United States in terms of both domestic and international law.
The combination of history, practice, and the precedents developed by the federal courts since 9/11 have “changed the rules” compared with the old armed conflict between internationally recognized nation-states paradigm. As the GWOT continues, the new rules will mostly likely continue to evolve.
1 Eric Luna and Wayne McCormack, Understanding the Law of Terrorism 2nd Edition, Charlottesville, Matthew Bender and Co., Inc. (LexisNexis) 2015: 441-514. 2 Ibid: 441-442. 3 Ibid: 442. 4 Ibid. 5 Ibid: 442-443. 6 Ibid: 493. 7 Ibid: 442. 8 Ibid. 9 Ibid: 441. 10 Ibid: 442. 11 Ibid. 12 Ibid: 442-443. 13 Albert P. Melone, Researching Constitutional Law, Glenview, Scott Forseman-Little Brown Higher Education, 1990: 166. 14 Ibid: 167. 15 Luna and McCormack, Understanding the Law of Terrorism: 443. 16 Ibid: 445-447. 17 Ibid: 447. 18 Ibid. 19 Ibid. 20 Ibid: 448. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid: 450. 27 Ibid: 452. 28 Ibid. 29 Ibid: 450. 30 Ibid: 451. 31 Ibid: 484. 32 Ibid: 454. 33 Luna and McCormack, Understanding the Law of Terrorism: 460.
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34 Ibid: 464. 35 Ibid: 465. 36 Ibid: 466. 37 Ibid: 466. 38 Ibid. 39 Ibid: 470. 40 Ibid: 473. 41 Ibid. 42 Ibid: 474. 43 Ibid. 44 Ibid: 476. 45 Ibid: 478. 46 Ibid: 480. 47 Ibid: 499. 48 O'Connor, T. (2014). "Preventive Detention and Torture," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3030/3030lect07a.htm.