Re: Re: Re: Legal status of prisoners.

["Ian Murray" <seamus2001@xxxxxxxxx>]

<
http://www.prospect.org/print-friendly/print/V13/1/flet
cher-g.html >
War and the Constitution
George P. Fletcher

The media are awash in disinformation about military
tribunals. Since November 13, when President George W.
Bush issued his controversial executive order mandating
the use of military commissions to prosecute suspected
terrorists, one far-fetched claim of law has followed
another. The president's lawyers have every right to
put the best possible light on their plans for
sidestepping the criminal courts. My problem is with
the academic lawyers whose offhand opinions fill the
op-ed pages and the ears of Congress. Their din reached
its climax when two important legal scholars --
Laurence Tribe of Harvard and Cass Sunstein of the
University of Chicago -- testified as "liberals" before
the Senate Judiciary Committee that Bush's tribunals
would be compatible with the Constitution. Of course,
everybody these days is responding under pressure, but
the law professors have been giving "shooting from the
hip" a bad name.

Any serious examination of the sources -- statutes and
Supreme Court cases -- should lead a fair-minded
scholar to the opposite conclusion: There is no law
available to support the proposed Bush tribunals. Leave
aside whether the tribunals would be good or bad,
kangaroo courts or simply streamlined procedure; the
president has no authority to create them.

Tribe argued recently in The New Republic that "in
wartime, 'due process of law,' both linguistically and
historically, permits trying unlawful combatants for
violation of the laws of war, without a jury." This
single sentence captures many of the mistakes that run,
like viruses, through the debate in the press. But let
us begin with the fundamental question of whether the
Constitution, as Tribe suggests, is different in
wartime versus peacetime. In the words of the Supreme
Court's 1866 ruling Ex parte Milligan, the leading
precedent on this issue: "[T]he Constitution was
intended for a state of war, as well as a state of
peace, and is equally binding upon rulers and people at
all times and under all circumstances." When the Sixth
Amendment mandates that in "all criminal prosecutions"
certain rights should apply, including the right to a
jury trial, the framers mean what they say. And the
Supreme Court has understood the injunction. It is
undisputed law that if the civilian courts are open and
functioning, the armed forces cannot convene a military
commission or tribunal to try offenses that fall within
the civilian courts' jurisdiction.

True, Chief Justice William H. Rehnquist wrote in his
1998 book All the Laws but One that in the time of a
declared war the government has greater authority to
infringe civil liberties. For example, the government
can deport enemy aliens. But these infringements on the
status of enemy aliens do not affect their right to be
tried in civilian court for committing a crime in the
United States. The fact of "wartime" does not change
the meaning or scope of due process -- either
linguistically or historically.


The second basic point that we should clarify in order
to think straight about criminal justice à la Bush and
Attorney General John Ashcroft concerns "unlawful
combatants" -- the term that Tribe uses to explain the
category of people that can be tried by simplified
procedures for "violation of the laws of war." This
phrase, "unlawful combatant," appears all over the
place as though it could be the talisman that saves
Bush's tribunals.

The Supreme Court first used the term in 1942 in Ex
parte Quirin to solve a particular problem that arose
when eight German spies landed in civilian clothes on
the beaches of Long Island. The FBI arrested them
before they executed any of their planned acts of
sabotage. President Franklin D. Roosevelt was resolved
to prosecute them for something, and it turned out that
there was a suitable law on the books -- a provision of
the U.S. Code prohibiting spying in wartime near or
around American military installations. That statute
required trial by either court-martial or military
tribunal and imposed an automatic penalty of death.
Roosevelt quickly established the military tribunal
that the statute authorized, but the constitutional
dilemma remained. To see it, we have to concentrate on
one horn at a time.

The first problem was that these spies were members of
the German army. We were at war with Germany and
therefore the eight captives were arguably just like
soldiers who might have crossed the Canadian border in
tanks. And if they were combatants, then by the rules
of international law we were not entitled to try them
for acts committed in the pursuit of legitimate aims of
war. As Chief Justice Harlan Fiske Stone wrote for the
Supreme Court in Quirin: "Lawful combatants are subject
[only] to capture and detention as prisoners of war by
opposing military forces." The reason for this rule
lies in the general understanding that a soldier is
simply a servant of the state. He does not do anything
in his own name. He cannot be held personally liable
for the ravages of war.

Now, admittedly, there are various ways around the
rule. One is to deny that the military engagement is a
war and call it instead some kind of police action. But
the danger of trying too hard to deny the combatant
status of those engaged in military battle is that we
then encounter the second horn of the dilemma: If these
are merely criminals who have committed crimes against
the United States, they must be tried in a federal
district court. That is the holding in the 1866
decision Milligan. In fact, it seems to be the tack
taken by Harvard University law professor Anne-Marie
Slaughter, who argued against Bush's tribunals in The
New York Times, saying that al-Qaeda members fighting
in Afghanistan are really just "common criminals" and
shouldn't be dignified with the status of combatants.

Here, then, was the quandary faced by the Supreme Court
in 1942: Either the eight German spies were combatants
or they had to be tried in federal district court --
with full procedural protections -- for their apparent
conspiracy to commit sabotage. To find a way out of
this predicament, the Court invented the category of
"unlawful combatant." Eureka! The spies fell
conveniently between the stools of international law
(no trial for combatants) and the rule in Milligan (an
obligatory trial in available civilian courts); thus,
they could be tried in Roosevelt's tribunal. The
soldiers were "unlawful" because they wore civilian
clothes when they slipped behind enemy lines to spy.
They did not deserve to be treated as combatants exempt
from prosecution because by virtue of their deception
they had not run the risk that all combatants run,
namely of being shot when they cross into enemy
territory.

But if there is one idea that those now commenting on
Bush's proposed tribunals systematically distort, this
is it. They use the word "unlawful" as if it were the
equivalent of "violating the laws of war." Recall
Tribe's line: "In wartime, 'due process of
law'...permits trying unlawful combatants for violation
of the laws of war." His logic seems to be that any
soldier who commits a war crime would be an unlawful
combatant and subject to trial by military tribunal.

Alberto Gonzales, the chief White House counsel,
betrayed the same root mistake when he addressed the
American Bar Association in late November. He tried to
demonstrate the limited scope of the tribunals by
saying that the administration was only after "enemy
soldiers." Then someone reminded him that enemy
soldiers are protected by the Geneva Conventions and
cannot be prosecuted at all. He corrected himself by
saying that tribunals were after "unlawful combatants."
He, too, seems to believe that the category of
"unlawful combatant" is so broad that it includes
anyone the administration might want to prosecute in a
special tribunal -- anyone who has done something
unlawful and is a combatant. But that is not the
meaning of the Quirin precedent.


Much of the confusion arises from the failure to
recognize that there are two bodies of law -- both
called "the law of war." To understand the difference
between them, we have to think ourselves back into the
period before the Nuremberg trials, before the Japanese
war-crime trials, when the law of war was not primarily
about crimes; it was about how you conducted yourself
as someone embedded in a chain of command and therefore
qualified for the immunity from prosecution promised to
combatants. It meant, among other things, that you had
to wear a uniform, fight with your company, and cease
fighting when the army surrendered.

During World War II, the "law of war" came to refer
primarily to war crimes that violated basic principles
of morality and decency. But when the Quirin case was
decided, that transformation had not yet become
apparent. There was nothing immoral -- by contemporary
standards -- about the Germans spying in the United
States. The Americans would surely have done the same
thing in enemy territory (and probably did if they were
smart). Perhaps there was something duplicitous about
crossing enemy lines in civilian clothes, but one could
hardly imagine bringing a case to The Hague on those
grounds. Quirin did not incorporate the universal
standards of morality that we now associate with the
principles of the Geneva Conventions and the Rome
Statute of July 1998 proposing an International
Criminal Court.

The key case in the transition to the modern law of war
was the 1946 appeal to the U.S. Supreme Court by the
Japanese General Tomoyuki Yamashita. A military
tribunal in the Philippines, established by the postwar
commander of the islands, Lieutenant General Wilhelm
Styer, had charged Yamashita for allowing his troops to
go on a rampage and commit atrocities against local
civilians. The military tribunal had invented a new war
crime that amounted, in effect, to a commander's
negligent supervision of his troops, and the Supreme
Court affirmed that it could do so. Thus was born the
idea of a war crime under the law of war.

If President Bush had a precedent on his side of the
argument, it would be Yamashita v. Styer. According to
this case, he surely has the power to use tribunals to
prosecute war crimes (in the modern sense) that -- like
the atrocities in the Philippines -- occur entirely
outside the jurisdiction of the United States courts.
Anyone who looks into the Yamashita case, however, will
find that it stands together with Korematsu v. United
States, the 1944 decision upholding the military
internment of American Japanese, as one of the
disgraceful episodes of World War II jurisprudence.
Among other things, the Yamashita decision violated the
Geneva Convention of 1929, which provides that
prisoners of war may be convicted and sentenced "only
by the same courts and according to the same procedure
as in the case of persons belonging to the armed forces
of the detaining Power."

In other words, General Yamashita and every foreigner
suspected of a war crime should have received the same
procedural protection as was available in an American
court-martial. (Thus, under the Geneva Conventions,
Bush's executive order mandating military tribunals is
unacceptable because it permits, among other things, a
death sentence based on a two-thirds vote, while an
American court-martial requires a unanimous vote.) The
weakness of the Supreme Court's reasoning in Yamashita
is exposed in stinging dissents by Justices Frank
Murphy and Wiley Rutledge.

It is not surprising, then, that in the current
discussion no one invokes the precedent of Yamashita.
But even if those who argue for the president's
tribunals wanted to invoke the case, they would have to
contend with the fact that General Yamashita was not
subject to prosecution in the federal courts for acts
committed in the Philippines against the local
population. The implication of the Yamashita case is
that Taliban and al-Qaeda fighters who are taken
prisoner could be prosecuted by military tribunals (or
more properly by American courts-martial) but only for
war crimes committed in Afghanistan. As for suspects
who allegedly participated in a conspiracy to commit
the crimes of September 11, they are liable for a crime
on American soil and are therefore subject to
prosecution in the federal courts. In the end,
Yamashita -- whether it is still good law or not --
does not help the president's case, for the precedent
is limited to cases beyond the competence of the
American civilian courts.

To return, however, to the two different meanings of
the law of war, what we've seen since World War II is a
remarkable shift in emphasis from the law of war as a
set of rules about fair fighting to the law of war
crimes as a set of norms about decent behavior toward
civilians and prisoners of war. And those who argue in
favor of the president's tribunals typically confound
the two. Because military tribunals do have
jurisdiction over unlawful combatants, as the Quirin
decision established, proponents claim that military
tribunals can prosecute war crimes, or violations of
the law of war in the modern sense. For example, in his
testimony to the Senate Judiciary Committee, Cass
Sunstein cited Quirin as though it were sufficient in
itself to establish the constitutionality of Bush's
tribunals.

Here is how Ruth Wedgwood, a Yale University law
professor, defended the president's order in The Wall
Street Journal: "Military courts are the traditional
venue for enforcing violations of the law of war." The
statement is true if she is talking about Quirin-type
violations of the law but grossly misleading if the
focus is on war crimes in the modern sense. There is no
tradition or constitutional authority legitimating
trial by a military tribunal when the crime is subject
to prosecution under American law and the appropriate
American courts are open and functioning. And ever
since the postwar period, anyone suspected of a grave
breach of the Geneva Conventions against American
nationals is, by law, subject to prosecution in a
federal district court.


One of the more disconcerting aspects of Tribe's
testimony to the Senate Judiciary Committee is that he
preached congressional approval as a way of remedying
the defects in the Bush executive order. It never
occurred to him, apparently, that Congress has no clear
constitutional basis for adding to the very limited
categories of crimes committed under American law that
can be prosecuted in military tribunals.

In fact, the Bill of Rights guarantees a civilian court
trial to anyone accused of crimes in violation of
federal statutes, with only two historically entrenched
exceptions. One is court-martial jurisdiction over the
U.S. armed forces and the other is the limited case of
spying upheld in the Quirin case. (Yamashita does not
count here because it attaches to crimes committed
outside the jurisdiction of American courts.) The
narrow exception for court-martial jurisdiction is made
explicit in the Fifth Amendment ("except in cases
arising in the land or naval forces"), and the Supreme
Court justified the narrow exception for the spying
statute on the ground that military tribunals for
spying functioned before the nation's founding and
therefore were "grandfathered" into the Constitution.

Contrary to Sunstein's testimony, there is no general
exception recognized in American law for war crimes
committed against civilians. In fact, since World War
II, all war crimes committed by U.S. troops or against
American nationals have been federal offenses subject
to the jurisdiction of the federal courts. Nor can you
make the Quirin argument that jurisdiction over these
crimes antedates the Constitution, for there were no
war crimes (in the post-Nuremberg sense) at the time
and there was certainly no war crime based on attacks
against the civilian population. Also, it is worth
noting that in the language of the spying
statute--which provides the only congressionally
authorized military tribunal to date--Congress took
pains to bring the crime within the framework of
court-martial jurisdiction. The offense is described in
the statute as "lurking as a spy" in or around a
military facility. This falls within the penumbra of
court-martial jurisdiction over military bases.

The arguments concerning congressional authority do not
satisfy. And if there is a good argument for the
president's having inherent authority to establish the
tribunals, I have yet to hear it. Ruth Wedgwood made a
stunningly inaccurate claim in The Wall Street Journal
that the president has implied power as commander in
chief to set up military tribunals. She said this
principle is "acknowledged by Chief Justice Stone in a
1942 opinion." The opinion she was referring to
is--once again--the Quirin case, and here is what the
chief justice actually wrote: "It is unnecessary for
present purposes to determine to what extent the
President as Commander in Chief has constitutional
power to create military commissions without the
support of Congressional legislation." Who knows what
she could have been thinking.

Wedgwood also claimed that Congress has already
"agreed" to the president's power to invoke military
tribunals. This, too, is false. The most Congress has
ever done is recognize the possible existence of
military tribunals. For instance, a provision of the
1950 Universal Code of Military Justice recognizes the
authority of the executive branch to prescribe rules of
evidence for military courts, including existing and
authorized military tribunals. But that law does not
grant the president authority to convene tribunals, and
it specifies no criteria as to when a tribunal should
hear a case that would otherwise go to the regular
civilian courts.

The fact is that the president has no apparent
authority to convene military tribunals for the crimes
of September 11. Of course, we do not know the
circumstances in which the Defense Department will try
to invoke this power to sentence supposed international
terrorists to death. When it does, though, we can be
sure that there will be litigation; and if the Supreme
Court reads its own cases faithfully, it will uphold
the rule in Ex parte Milligan and strike down the
conviction of anyone who should have been tried in
federal court.

In the meantime, the very existence of the executive
order of November 13 is creating an international
scandal. European countries refuse to extradite
suspects to us on the ground that they can be sentenced
to death in summary proceedings. And an argument is in
the offing that the very threat of capital punishment
against "enemy soldiers," the phrase that Alberto
Gonzales let slip, can constitute a war crime by the
United States. According to the Rome Statute, it is a
crime for one army to declare that "no quarter will be
given" to the other side. Enemy soldiers, in other
words, have the right to surrender without being
harmed. Yet if we threaten them with the death penalty
by summary proceedings, we are in effect depriving them
of their right to a safe surrender and thus declaring
that "no quarter will be given."

The irony is that the administration has ably pursued
its war aims. In this area of demonstrating respect for
the Constitution and international law, however, it has
failed miserably. Perhaps that is because the Bush team
has been uncertain whether they are fighting a war or
trying to arrest those who financed and organized the
attacks of September 11. They cannot quite decide
whether this was a collective crime of al-Qaeda and the
Taliban, in which case war is the proper response, or
the individual crime of Osama bin Laden and other as
yet unidentified individuals, in which case a criminal
prosecution is the correct action. The military
tribunals offer a halfway-house approach that they may
see as prosecuting the war while also bringing the bad
guys to justice.

Sooner or later, however, despite the failure of our
"liberal" law professors, the truth will win out: The
prosecution of suspects for crimes committed on
American soil must--if the charges were not prosecuted
in tribunals at the time of the Constitution--come
before the federal courts. Neither the president nor
Congress has the authority to suspend that
constitutional guarantee.