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Al Qaeda, Terrorism, and Military Commissions

Published online by Cambridge University Press:  27 February 2017

Ruth Wedgwood
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Extract

It is now more than an academic question whether one should regard terrorism as crime or as war. The attacks mounted by the Al Qaeda organization on September 11, 2001, were of unprecedented scale, heretofore seen only in wartime, killing three thousand people in a few hours’ time. Most victims were civilians, and most were Americans, yet the dead included people from eighty-seven countries. Had the emergency evacuation of the World Trade Center towers not run efficiently, as many as twenty-five thousand more might have died.

The psychological sense that this was an act of war is founded on the extraordinary destructiveness of the act. In the past, even terrorism has evinced an implicit set of expectations—using violence to intimidate or gain publicity, targeting civilians so as to undermine the confidence placed in organized authority, but generally stopping short of this irrational magnitude of destruction. Only nihilism might seem to explain a scale of wreckage that serves no programmatic demands or political ambition.

Type
Agora: Military Commissions
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 328 - 337
Copyright
Copyright © American Society of International Law 2002

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References

1 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001); SC Res. 1373 (Sept. 28, 2001), 40 ILM at 1278.

2 SC Res. 1373, supra note 1, paras. 1-2.

3 NATO Press Release (2001)124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM 1267 (2001).

4 Ruth Wedgwood, The Law at War: How Osama Slipped Away, Nat’l Interest, Winter 2001/02, at 69.

5 Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025 (1980) (codified as amended at 18 U.S.C. app. 696, §1 (2000)), as amended by Pub. L. No. 106-567, tit. VI, §607, 114 Stat. 2855 (2000).

6 Cullison, Alan & Higgins, Andrew, How Al Qaeda Agent Scouted Attack Sites in Israel and Egypt—Account on Kabul Computer Matches Travels of Reid, the Alleged Shoe-Bomber, Wall St. J., Jan. 16, 2002 Google Scholar, at A1.

7 See Ex parte Quirin, 317 U.S. 1, 31 n.l0(1942).

8 P, George. Fletcher, ,War and the Constitution: Bush’s Military Tribunals Haven’t Got a Legal Leg to Stand On, Am. Prospect, Jan. 1-14, 2002 Google Scholar, at 26, available at <http://www.prospect.org/print/V13/1/fletcher-g.html>.

9 Accounts of the early history of American military commissions can be found in William Winthrop, Military Law and Precedents (2d rev. ed. 1920), and Birkhimer, William, Military Government and Martial Law (1914)Google Scholar. On the history of commissions generally, see also Madsen v. Kinsella, 343 U.S. 341 (1952); A. Green, Wigfall, The Military Commission, 42 AJIL 832 (1948)Google Scholar. See further die statement of Major General Enoch H. Crowder, judge advocate general, on revision of the Articles of War:

There will be more instances in the future than in the past when the jurisdiction of courts-martial will overlap that of the war courts, and the question would arise whether Congress having vested jurisdiction by statute the common law of war jurisdiction was not ousted. I wish to make it perfectly plain by the new article [15] that in such cases the jurisdiction of the war court is concurrent.

S. Rep. No. 63-229, at 53, 98 (1912). On Article 15 of the Articles of War, see note 17 infra.

10 Ex parte Quirin, 317 U.S. 1 (1942).

11 In re Yamashita, 327 U.S. 1 (1946).

12 Johnson v. Eisentrager, 339 U.S. 763 (1950).

13 Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 84, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention] (consented to by the United States Senate on July 6, 1955, with reservations) (emphasis added).

14 18 U.S.C. §2441 (2000) (as amended in 1996 and 1997).

15 Id. §2441 (c). For the Hague rules, see Regulations Respecting the Laws and Customs of War on Land, infra note 27. Violations of the Land Mines Protocol (Protocol II), May 3, 1996, 35 ILM 1206 (1996), to the Convention on Conventional Weapons can also be prosecuted under the War Crimes Act. Only cases where an American national or member of the American armed forces is involved as perpetrator or victim fall within the statute’s reach.

16 Letter from Judith Miller, general counsel of the Department of Defense, to Congressman Bill McCollum (May 22, 1996), reprinted in H.R. Rep. No. 104-698, at 12, 13 (1996). Compare id. with Opinion of Attorney General James Speed, 11 Op. Att’y Gen. 297, 315 (1865) (“The civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with or prevent a battle.”).

17 Articles of War, Art. 15, in Pub. L. No. 242, ch. 227, 41 Stat. 787, 790 (1920) (emphasis added).

18 10 U.S.C. §821 (2000), also cited in the preambular language of President Bush’s order of November 13, 2001, 66 Fed. Reg. 57, 833 (Nov. 16, 2001).

19 In re Yamashita, 327 U.S. 1, 20 (1946) (stating that “[b]y thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war,” and that “the [Yamashita] military commission . . . [was] convened . . . pursuant to the common law of war”).

20 317 U.S. 1, 29 n.6 (1942). Congress, noted Chief Justice Stone in Ex parte Quirin, “had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course.” Id. at 29. See also Johnson v. Eisentrager, 339 U.S. 763, 786 (1950) (stating that “we have held in the Quirin and Yamashita cases . .. that the military commission is a lawful tribunal to adjudge enemy offenses against the laws of war”); Ex parte Vallandigham, 68 U.S. (1 Wall.) 249 (1863) (“ [M]ilitary offenses which do not come within the statute must be tried and punished under the common law of war.”).

21 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

22 H.R. Rep. No. 104-698, supra note 16.

23 UN Charter Arts. 2(4), 51.

24 Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, Sept. 18, 2001, Pub. L. No. 107-40, 115 Stat. 224, reprinted in 40 ILM 1282 (2001). The resolution authorized the President’s use of

all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Id. §2(a).

25 Ari Fleischer, White House Spokesman, Special White House Announcement Re: Application of Geneva Conventions in Afghanistan (Feb. 7, 2002), available in LEXIS, Legis Library, Fednew File; see also White House Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002), at <http://www.whitehouse.gov/news/releases/2002/02/>.

26 Third Geneva Convention, supra note 13, Art. 4(A) (2).

27 Regulations Respecting the Laws and Customs of War on Land, Art. 1, annex to Hague Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

28 Project of an International Declaration Concerning the Laws and Customs of War, Aug. 27, 1874, Art. 9, 65 Brit. & Foreign St. Papers 1005 (1873-74), reprinted in The Laws of Armed Conflicts 27 (Dietrich Schindler & Jiří Toman eds., 3d rev. ed. 1988).

29 As the Commentary notes:

These “regular armed forces” [under Third Geneva Convention Article 4(A) (3)] have all the material characteristics and all the attributes of armed forces in the sense of [Article 4(A) (1)]: they wear uniform [s], they have an organized hierarchy and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in [Article 4(A) (2)].

International Committee of The Red Cross, Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War 63 (Jean de Preux ed., 1960).

30 Afghan Agrees with Bush on Prisoners, N.Y. Times, Jan. 30, 2002, at A9.

31 Contra Neier, Aryeh, The Military Tribunals on Trial, N.Y. Rev. Books, Feb.14, 2002,Google Scholar at 11, available at <http://www.nybooks.com>.

32 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 43(1), 1125 UNTS 3 (“armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict”). One may distinguish between the moral vagrancy of an individual, per Article 44(2), and of an entire fighting force, per Article 43(1).

33 The only places where the Third Geneva Convention may differ from the likely commission rules for the unlawful combatants of A1 Qaeda is in the possible reading of Article 105 that a qualified prisoner of war can choose any counsel he pleases (a choice that may logically be constrained by the demands of security clearance), and by the suggestion of a “most favored combatant” clause in Articles 102 and 106 to the effect that the sentencing procedure and mode of review must be the same as that accorded to the soldiers of the detaining power for like offenses. The latter is complicated when one notes that courts-martial are not the only available mode of trial even of American soldiers for violations of the law of war—indeed, the punishment of war crimes is not codified in the Uniform Code of Military Justice. Military commissions have been used historically for the trial of American soldiers as well as enemy combatants.

34 American Bar Association, Task Force on Terrorism and The Law, Report and Recommendations on Military Commissions (Jan. 4, 2002), available at <http://www.abanet.org>; Weiser, Benjamin, Ex-Prosecutor Wants Tribunals to Retain Liberties, N.Y. Times, Jan. 8, 2002,Google Scholar at A13.

35 The rules issued on March 21, 2002, are more forthcoming than most critics had expected, and guarantee, inter alia, the presumption of innocence, the right against self-incrimination, burden of proof on the government, the choice of civilian defense counsel to serve alongside military defense counsel, the right of cross-examination and presentation of proof by the defense, and proof beyond a reasonable doubt. In addition, there is a requirement of unanimity for any capital sentence, a right of petition to an appellate review panel with autonomous power to reverse any conviction, and participation of civilians on the review panel (though they will be nominally commissioned as officers during their service). U.S. Dep’t of Defense, Military Commissions Order No. 1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (Mar. 21, 2002), at <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>.