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.