11-13-01 Bush Military Order

[Arthur D. Wolf]

        If I read his note correctly, Gil seems to be suggesting that the
Government is more likely to obtain a conviction of an accused terrorist in
a "secret" trial before a military commission than before a jury, say, in
the United States District Court for the Southern District of New York.  In
my view, the probability of conviction, especially if the defendants are
accused of destroying the WTC, is quite high in both tribunals.  Other than
the compromising of intelligence sources, I would surely advise the AG, if
I were still an attorney in the Justice Department, to choose the USDC.

        But favoring public trials with all the protections of the Constitution
and with all the "public relations" value that might obtain does not
address or resolve the constitutionality of the President's proposal.
Indeed even "secret" trials before military commissions can comport with
due process and the Constitution, if they are conducted "correctly."
Courts-martial are exempt from the bill of rights, yet are conducted with
many procedural protections that approximate the constitutional guarantees
in criminal cases in the USDC.

        As other list members have pointed out, the Court in Quirin even upheld
the military commission approach as applied to American citizens.
Apparently one of the saboteurs in Quirin was a U.S. citizen.  President
Bush's EO excludes citizens from its reach, a major limitation on the use
of military commissions.

        With regard to the jurisdictional reach of military commissions, Quirin
defines it in terms of the "laws of war."  At the time of Quirin (1942),
the Hague Convention of 1907 or Hague Regulations, as they are commonly
called, contained the operative standards for conducting war between and
among nations.  The current standards are, of course, contained in the four
Geneva Conventions of 1949 and the two protocols of 1977 (one of which
reaches "armed conflict not of an international character," i.e., internal
civil wars).  In addition, the customary international law of war may
provide some additional standards.

        The terrorist acts of September 11 (or the anthrax attacks) would probably
not be within the "laws of war" as Quirin stated them, simply because they
were not committed by members of a foreign military or government with
which we are at war.  That is why I suggested earlier that the Quirin
precedent would need to be expanded to allow the use of military
commissions to try these terrorists.  For sure, these terrorists are not
within the exemption of Ex parte Milligan.  But that also are not directly
in the path of Quirin.


                                        Art Wolf
                                        Western New England College





At 05:41 PM 11/14/2001 -0600, you wrote:
>
>For anyone who's interested: I published an article recently on the
>Japanese Internment as foreign affairs law precedent that looked at, among
>other things, Chief Justice Rehnquist's 1998 book *All the Laws
>but One: Civil Liberties in Wartime*, which deals at length with the
>Milligan case (delimiting its effect of course since Hishonor apparently
>doesn't think very highly of civil liberties in wartime.)
>
>My piece is called "A Tale of New Precedents: Japanese American Internment
>as Foreign Affairs Law," 40 B.C. Law Rev. 179 (1998).
>
>The argument in the article is that the dominant foreign affairs law
>paradigm is hopelessly (and unreflexively) IR
>realist, that is, based on a Hobbesian understanding of the "external
>realm" as anarchic, permanently a war of all against all, etc.
>Merely positing this "realm" (often temporally designated as "wartime")
> automatically suspends application of otherwise standard liberal legal
>frameworks. I think the argument in Rehnquist' book is ultimately
>reducible to this kind of thinking.
>
>Milligan is interesting and complicated because it arguably, in part at
>least, reflects the slide toward an anti-reconstruction bias of a post-War
>Court that was not interested in seeing the federal gov't's military
commander
>in Indiana try a "copperhead" southern sympathizer before a military
>tribunal. Ex parte Quirin, as I recall the case, would seem to allow for
>use of military commissions WHERE CONGRESS HAS DRAFTED ARTICLES OF WAR
>that provide the President with particular power to create such tribunals
>and set their procedures, etc. I think the Quirin Court placed great
>weight on the fact that it wasn't looking at an assertion of sole
>executive power to suspend the functioning of art. III courts in time of war.
>It was, anticipating J. Jackson's tripartite framework from Youngstown, the
>President acting with the assent of Congress, where the executive's
>foreign affairs powers were thus "at their maximum."
>
>Anyway, it seems a very bad idea, for all the reasons Joan Fitzpatrick
>gives, to be meting out something akin to medieval forms of justice at
>this moment. I have thought that the biggest problem for those
>prosecuting the so-called war on terrorism would arise if alleged perp's
>of the attacks were caught alive. Then the legal case would have to be made,
>or not. The President's Order certainly goes a long way toward by-passing
>that problem . . .
>
>GG
>
>
>
>On Wed, 14 Nov 2001, Joan Fitzpatrick wrote:
>
>> The problem with either analogy (the Civil War or ex parte Quirin) is that
>> the US is not engaged in an "armed conflict" within the meaning of
>> international law.  We are fighting the Taliban in Afghanistan, but we do
>> not recognize it as the Government of that state -- it is a non-state
>> entity to the US (the US, along with the UN, still technically recognizes
>> the Rabbani government, but some newly minted coalition may soon get the
>> nod).  Indeed, we are so consistent in not recognizing the Taliban that
>> Afghanistan is not on the State Dept.'s list of "state sponsors of
>> terrorism" (the seven are Cuba, Libya, Syria, Iran, Iraq, North Korea and
>> Sudan).
>> We are fighting Al Qaeda, but it is not a state and has a
>> presence in many countries, including many European countries (note the
>> arrests in Spain yesterday, a country Atta visited shortly before the
>> attacks; Atta and several other hijackers were "harbored" in Germany for
>> an extended period).
>> This is hardly an "internal armed conflict" like the Civil War, even
>> though there were grave attacks on US soil.  The USA PATRIOT bill does,
>> however, selectively repeal 28 USC 2241 (the basic habeas statute) for
>> "certified" detainees, sidestepping a Suspension Clause issue by
>> providing substitute habeas jurisdiction of yet-to-be-determined scope.
>> The "war" is metaphorical -- this is a broadly based, multinational police
>> action against organized, politically motivated, transnational criminal
>> syndicates.
>> Military commissions are highly inappropriate in this
>> context.  Creating special tribunals to try civilians who pose a
>> "security threat" is a classic abuse of fundamental rights during states
>> of emergency.  Military Commissions provide even fewer due process
>> protections than courts martial.
>> We are ceding the moral high ground, and attracting more recruits to Al
>> Qaeda by acting in a manner contrary to our basic constitutional
>> principles and fundamental human rights.  The Administration "reassures" us
>> that U.S. citizens will not be subject to the jurisdiction of these
military
>> commissions.  To put a veneer of legality on what will be essentially
>> summary executions is deeply offensive.  What next -- "faceless judges"?
>> Joan
>>
>> ___________________________________________________________
>> Joan Fitzpatrick, Jeffrey & Susan Brotman Professor of Law
>> School of Law, University of Washington, Box 354600
>> 1100 N.E. Campus Parkway, Seattle WA 98105-6617
>> phone (206) 543-9368, fax (206) 685-6617
>>
>> On Wed, 14 Nov 2001, David Thronson wrote:
>>
>> > I believe the case is Ex Parte Quirin.
>> >
>> > <<< jack.chin at law.uc.edu 11/14 12:02p >>>
>> > My colleague Jim O'Reilly tells me that the German saboteurs who came
ashore
>> > on Long Island in 1942 were tried, sentenced and executed under the
>> > authority of a military commission.
>> >
>> > Jack Chin
>> >
>> >
>> > ----- Original Message -----
>> > From: "David Abraham" <dabraham at law.miami.edu>
>> > To: <immprof at lists.colorado.edu>
>> > Sent: Wednesday, November 14, 2001 11:38 AM
>> > Subject: Re: 11-13-01 Bush Military Order
>> >
>> >
>> > > Colleagues,
>> > >
>> > > what does anyone know of the conceivable precedents or
justifications for
>> > > this move by Bush/Ashcroft.  Leaving aside bin laden or others who
might
>> > > be captured abroad and put before military tribunals, where does the
idea
>> > > come from that 5,000 aliens *in* the US could be put before
tribunals of
>> > > this court because a member of the executive thinks they might be
related
>> > > to terrorist activity?
>> > >
>> > > David A
>> > >
>> > > Prof. David Abraham
>> > > School of Law
>> > > University of Miami
>> > > dabraham at law.miami.edu
>> > > tel 305-284-5535
>> > > fax 305-284-1588
>> > >
>> > >
>> >
>> >
>> >
>> >
>>
>>
>
>