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Jurisdiction of Military Commissions and the Ambiguous War on Terrorism

Published online by Cambridge University Press:  27 February 2017

Joan Fitzpatrick
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Extract

The Military Order issued on November 13,2001,1 by President George W. Bush does not offer a clear rationale for subjecting international terrorists, and persons suspected of links to them, to trial by military commissions. Military commissions can be designed for several purposes: (1) to prosecute violations of the law of war, as an alternative to courts-martial; (2) to fill a legal vacuum where armed conflict disables the civil courts; and (3) to impose swift and certain punishment against civilians suspected of specific crimes. While the first two purposes are legitimate and reflected in past United States practice, the third is questionable and a sharp departure from democratic traditions. The ambiguous nature of the “war” against international terrorism and the sweeping text of the November 13 Military Order obscure which objective(s) the order is intended to accomplish.

Type
Research Article
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 345 - 354
Copyright
Copyright © American Society of International Law 2002

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References

1 Order, Military, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (Nov. 13, 2001)Google Scholar, 66 Fed. Reg. 57, 833 (Nov. 16, 2001) [hereinafter Military Order].

2 White House Fact Sheet: Status of Detainees at Guantanamo (Feb. 7, 2002), at <http://www.whitehouse.gov/news/releases/2002/02/>. The procedural regulations issued by the Department of Defense confirm that persons subjected to trial by military commission will be deprived of crucial structural protections against prosecutorial abuse that are constitutionally secured in federal criminal trials, including the right to grand jury indictment, jury trial, trial by a politically independent judge, and appeal to politically independent judges. That the regulations bring the commissions closer to a court-martial model (than the original order seemed to envision) does not undermine the point that no adequate justification for their use has yet been offered by the administration. 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>.

3 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 4, 999 UNTS 171.

4 Military Order, supra note 1, §1 (a).

5 White House Fact Sheet, supra note 2 (“Although we never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention. Under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs.”).

6 Military Order, supra note 1, §1 (d), (e), (f).

7 Id., §1(e).

8 8 U.S.C. §1189 (2000); U.S. Dep’t of State, Office of the Coordinator for Counterterrorism, 2001 Report on Foreign Terrorist Organizations (Oct. 5, 2001), at <http://www.state.gov/s/ct/rls/rpt>; U.S. Dep’t of State, Designation of Foreign Terrorist Organizations (Dec. 26, 2001), at <http://www.state.gov/secretary/rm/2001>.

9 W, George. Bush, , Address Before a Joint Session of the Congress on the State of the Union (Jan. 29, 2002)Google Scholar, 38 Wkly. Comp. Pres. Doc. 133 (Feb. 1, 2002), available at <http://www.whitehouse.gov/news/releases/2002/01/20020129-11.htm>.

10 Whitmore, Brian, Fighting Terror, Taking Custody/Bosnia; Six Suspects Handed to US, Boston Globe, Jan. 19, 2002 Google Scholar, at A9, available in LEXIS, News Library, Majpap File.

11 Dr.Ayman, A1-Zawahiri describes A1 Qaeda’s 1996 declaration of war on the United States, on behalf of the Muslim “nation,” in his book Knights Under the Prophet’s Banner. Excerpts from the book, translated from Arabic into English from a serial version published in London by A1-Sharq A1-Awsat in December 2001 Google Scholar, are available at <http://www.fas.org/irp/world/para/ayman_bk.htm> (visited Feb. 5, 2002).

12 Geneva Convention Relative to the Treatment of Prisoners of War, Art. 2, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Geneva Convention No. III].

13 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts [Protocol I], Art. 1 (4),June 8, 1977, 1125 UNTS 3.

14 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [Protocol II], Art. 1(1), June 8, 1977, 1125 UNTS 609. Common Article 3 of the Geneva Conventions of 1949, see, e.g., Convention No. III, supra note 12, refers less precisely to conflicts not of an international character.

15 Thus, the head of the interim Afghan government, Hamid Karzai, agreed that the Guantánamo captives were not prisoners of war, but on the rationale that they were “criminals” and mere was “no war.” Afghan Agrees with Bush on Prisoners, N.Y. Times, Jan. 30, 2002, at A11. See text at note 2 supra and at notes 26-33 infra.

16 50 U.S.C. §21 (2000) (“all natives, citizens, denizens, or subjects of [a] hostile nation or government” with which the United States is engaged in a “declared war”).

17 SC Res. 1368 (Sept. 12, 2001), 40 ILM 1277 (2001); SC Res. 1373 (Sept. 28, 2001), 40 ILM at 1278; NATO Press Release (2001) 124, Statement by the North Atlantic Council (Sept. 12, 2001), 40 ILM at 1267.

18 See, e.g., European Union, Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, 40 ILM 1264 (2001).

19 The key judicial precedents for U.S. military commissions are four cases arising during the Second World War, Ex parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946); Duncan v. Kahanamoku, 327 U.S. 304 (1946); and Johnson v. Eisentrager, 339 U.S. 763 (1950); and one arising in the Civil War, Ex parte Milligan, 71 U.S. 1 (1866).

20 Geneva Convention No. III, supra note 12, Art. 3.

21 Castillo Petruzzi, Inter-Am. Ct. Hum. Rts., ser. C, No. 52 (May 30, 1999), available at <http://www.corteidh.or.cr/seriecing/index.html> (human rights violations in trial of Chilean civilians accused of terrorism by “faceless” military judges in Peru).

22 UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), available at <http://www.unhchr.ch/tbs/doc.nsf>.

23 Id., para. 15.

24 Id., para. 16.

25 Military Order, supra note 1, §7 (b)(2).

26 UN Human Rights Committee, supra note 22, para. 16.

27 White House Fact Sheet, supra note 2.

28 Geneva Convention No. III, supra note 12, Art. 5; International Committee of the Red Cross, Press Release, Geneva Convention on Prisoners of War (Feb. 9, 2002), at <http://www.icrc.org>.

29 Geneva Convention No. III, supra note 12, Art. 4(A) (2) (responsible command, fixed distinctive sign, carrying arms openly, conducting operations in accordance with laws and customs of war).

30 Id., Arts. 13-32, 82-88, 99-108.

31 Id., Arts. 118-19.

32 Id., Art. 130.

33 White House Fact Sheet, supra note 2.

34 Most Wanted: Dead or Alive? S.F. Chron., Jan. 10, 2002, at A9, available in LEXIS, News Library, Majpap File (detainees include Abdul Salam Zaeef, Taliban ambassador to Pakistan; Fazel Mazloom, Taliban army chief of staff; and Abdul Aziz, Saudi official with the Wafa Humanitarian Organization).