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Debate Club
DEBATE CLUB 9/13/04

How should the U.S. try suspected terrorists?

David B. Rivkin and Lee A. Casey debate Jenny Martinez.

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June's Supreme Court rulings in the cases of Yaser Hamdi and Shafiq Rasul were celebrated as victories for civil liberties. Hamdi v. Rumsfeld and Rasul v. Bush established a limit to the president's power to detain American and non-citizen "enemy combatants" without due process protections. But the implications of the rulings are labyrinthine. In the two cases, the court produced seven conflicting opinions establishing little more than the combatants' right to challenge their status before a "neutral decisionmaker."

As terrorist trials and tribunals begin in both federal and military courts, the Supreme Court's rulings lend a good deal of uncertainty to the proceedings. Some enemy combatants imprisoned at Guantanamo Bay have refused hearings and civil rights groups continue to attack the guidelines established by Hamdi and Rasul as biased against the suspects. Given this turmoil, the question remains: How should the United States try suspected terrorists?


Jenny Martinez is Assistant Professor of Law at Stanford and argued Rumsfeld v. Padilla in the Supreme Court. David B. Rivkin and Lee A. Casey are partners in the Washington D.C. office of Baker & Hostetler and members of the U.N. Sub-Commission on the Promotion and Protection of Human Rights.

Rivkin & Casey: 9/13/04, 10:55 AM
The question of how the U.S. should try captured members of al Qaeda and Taliban has both legal and policy dimensions. It is worthwhile to begin our dialogue with the legal questions, which are, in our view, quite straightforward and well-established. Under the applicable body of international law, the U.S., as the detaining power, has the right to subject captured enemy combatants to its military justice system. In this regard, the U.S. is entitled to try all captured enemy combatants who have violated the laws of war, none of them, or some subset thereof. It also has discretion as to when the trials of enemy combatants are to be initiated, provided, however, that they commence either before the hostilities in which they have been captured expire or within a reasonably short period of time thereafter. (All captured combatants who are not charged by then ought to be released.)

The timing issue aside, the law of armed conflict does not require that detaining powers treat all captured enemy combatants alike. Lawful combatants, who, prior to their capture, have conformed their conduct to the laws and customs of war, have to be accorded POW status, although they still may be tried for particular violations of the laws of war. Such prosecutions can only take place in the same military justice institutions that prosecute the members of armed forces of the detaining power—the regular courts martial. By contrast, unlawful combatants—individuals who fight out of uniform, do not bear arms openly, do not have a transparent chain-of-command, and deliberately attack civilians—while entitled to due process when prosecuted, do not have to be tried through the regular courts martial system. Instead, they can be prosecuted using another venerable military institution—military commissions. Significantly, since unlawful combatancy itself is a per se fundamental violation of the laws and customs of war, such individuals can, in fact, be prosecuted and punished simply for having taken up arms. These distinctions reflect a clear-cut international law and policy imperative to disfavor unlawful combatants—traditionally and correctly viewed as the scourge of humanity—and to provide incentives for all combatants to comply with the laws of war.

Contrary to the assertions by the critics, the category of unlawful combatants and the use of military commissions to try them is not a post-September 11 Bush Administration innovation. These rules have been in existence for centuries, and military commissions have been used by numerous countries, including and especially by the Allied Powers after World War II. (The major reason military commissions did not operate in the aftermaths of the Vietnam and Korean Wars is because neither conflict has resulted in an unconditional surrender, enabling the winners to dispense justice.) Moreover, there have been no changes in the laws of war—accepted by the United States—that have altered these basic rules. (Indeed, even if the U.S. were to apply the "relaxed" standards, contained in the 1977 Protocol I Additional to the 1949 Geneva Conventions—which the U.S. has explicitly rejected—al Qaeda and Taliban's combat techniques depart so fundamentally from the minimum requirements imposed by the laws of war that they still would be considered unlawful combatants, fully subject to detention, prosecution, and punishment.)

From the constitutional perspective, the situation is equally clear. In the 1942 Quirin case, the Supreme Court held that unlawful combatants, including U.S. citizens, can be properly tried by military commissions, even when such a trial takes place on U.S. soil and civilian courts are open and available. While some pundits and NGOs have tended to dismiss Quirin as obsolete in the current civil liberties-conscious era, the Supreme Court, in the just-decided Hamdi case, has referred to it approvingly; there is no doubt that, as far as at least five Justices are concerned, the military commission paradigm remains alive and well.

Significantly, the military commission system, established by the Bush Administration, provides substantially more due process than the commission in issue in Quirin and compares more than favorably with the level of due process accorded by various ad hoc international criminal tribunals, e.g., the U.N. International Criminal Tribunals for the Former Yugoslavia and Rwanda, and by the permanent International Criminal Court, now sitting in The Hague. Indeed, it closely tracks the courts martial procedures, with two important exceptions—the evidentiary rules and the nature of appellate review. The legal criticisms of the commissions range from petty—their rules are still in flux (true of any institution that is being set up or re-established after a long hiatus)—to specious (claims that, because there military officers involved as jurors, judges and prosecutors, defendants cannot receive fair trial; under this logic, of course, all military justice is deficient). One is left with an impression that most critics would accept nothing short of federal district courts trials for al Qaedas and Talibs; for some, they should not be tried at all, but summarily released, to be reunited with their family and friends.

Martinez: 9/13/04, 05:52 PM
The military commission trials that began in Guant�namo this month are both legally flawed and bad policy. Combatants detained in connection with armed conflict should be tried using the well-established procedures for courts martial under the Uniform Code of Military Justice. Suspected terrorists who are not captured in armed conflict should be tried in civilian U.S. courts. Now is not the moment for the United States to improvise new procedures in military commissions of dubious legitimacy.

The first week of proceedings before the military commissions was a travesty. The commission members (all but one of whom have no formal legal training) seemed perplexed when asked about basic legal concepts like "due process of law" and "reasonable doubt." One member confessed that he did not really know what the Geneva Conventions were—which is quite troubling given that the Conventions are the cornerstone of the modern laws of war. Even if he was not familiar with the Geneva Conventions before being appointed to the commission (though the Conventions are a mandatory topic in basic training) you would have thought this high-profile assignment might have caused him to study up. The presiding officer of the commission—the only lawyer in the bunch—was little better prepared. He reacted like a deer caught in the headlights when one defendant asked to represent himself or have a lawyer from his home country assigned to work with him. This type of request is hardly unusual, and both the civilian courts and courts martial have established legal standards for evaluating them. Because the military commissions are starting from scratch, however, every new issue of procedure or evidence will cause this kind of paralysis. And then there were the problems with the translators—apparently, they were so inadequate that the defendants and Arab-language journalists had to struggle to figure out what was going on. It's a good thing the government is not allowing audio or video recordings of the trials—it would be far too embarrassing.

While it is true that military commissions have been used before in American history, they have been mothballed for half a century and have emerged from attic looking rather the worse for the wear. As Justice Scalia (not a notorious liberal) noted in his opinion in the Hamdi case, the Supreme Court's rush to judgment upholding the military commissions in its 1942 decision in Ex Parte Quirin "was not this Court's finest hour." Moreover, in the past fifty years, American criminal procedure has undergone a dramatic transformation. It was not until the 1950s and 1960s that the U.S. Supreme Court interpreted the phrase "due process of law" to incorporate most of the basic criminal procedure protections of the Bill of Rights against the states. American notions of "due process" have changed since 1942. Criminal procedure in civilian courts and in courts martial has kept up with these changes in law, while the moth-balled military commission procedures have not.

The military commissions are also patently unlawful under international law. Even if they committed war crimes, the Taliban fighters were clearly "members of the armed forces of a Party to the conflict" in Afghanistan and entitled to prisoner of war status under the 1949 Geneva Conventions (which also post-date the Quirin decision). Al Qaeda fighters captured in Afghanistan are entitled to a presumption of POW status unless and until a competent tribunal determines otherwise. Certainly, individuals who committed war crimes can and should be prosecuted, but under the Geneva Conventions, POWs must be tried for war crimes in "the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power"—i.e., in courts martial. Following the regular procedures for courts martial would also be good policy. Such procedures would impose few costs in terms of national security, and would offer greater legitimacy in the form of more procedural protections to defendants, including independent, civilian review in the U.S. Court of Appeals for the Armed Forces.

As for individuals who were not captured on the battlefield in Afghanistan, but instead were arrested in civilian settings in far-flung places such as Bosnia or even Chicago, military trials are not justified by the laws of war and are contrary to American tradition. But more on that next time.

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Rivkin & Casey: 9/14/04, 12:16 PM
The use of military commissions to try both al Qaeda and Taliban members (even assuming that the Taliban ever constituted the "armed forces" of Afghanistan) is fully lawful under international law. To qualify as "lawful combatants," and hence be entitled to prisoner of war status-and trial in regular courts martial-both the regular armed forces of states, and irregular militias, partisans or guerillas, must meet the same four requirements articulated in the 1907 Hague Regulations, and restated in the 1949 Geneva Conventions. This was settled law by the beginning of the 20th century, and is explicitly stated, for example, in the 1914 British Manual of Military Law. As that document suggests, these requirements are, in fact, inherent in the term "armed forces" which, of course, is a term of art in this context.

The reason Geneva Convention III explicitly refers to the four criteria in the context of paramilitary units, which has confused many commentators unfamiliar with the earlier sources, is that it was one of the key purposes of this convention to offer the option of becoming lawful combatants, and achieving the benefits of POW status, to those irregular armed forces that chose to comply with the four criteria. As you know, prior to that time, any forces lacking formal state sponsorship or affiliation could never become lawful combatants, regardless of how scrupulously they complied with the laws of war. (During World War II, for example, the Germans refused to grant lawful combatant status to the Free French forces under De Gaulle, even though they were organized, and behaved, as a regular army, because the government of France had capitulated. This problem was solved only when Churchill formally associated De Gaulle's forces with Great Britain.)

Second, your point that captured al Qaedas are entitled to POW status, because they have not been determined to be unlawful combatants by "a competent tribunal," is also mistaken. Article 5 of Geneva Convention III requires review by a "competent tribunal" (a term it does not define) only in cases of doubt as to the individual's POW eligibility. By definition, because al Qaeda is not a Geneva party (and could not become one) there cannot be a "doubt" as to the status of its members. Even if an individual al Qaeda did carry his arms openly, wore the uniform of a Napoleonic marshal, and conducted himself as a chevalier sans peur et sans reproche, he could not qualify for POW status. Once the U.S. Government concluded (as it is entitled to do) that the group was an unlawful belligerent, all doubt as to the legal status of its members was resolved for purposes of Article 5.

In addition, even in instances of mistaken identify, Article 5 does not require adjudication by a civilian (or regular military) court. As one of the only powers ever actually to implement Geneva III, the United States has interpreted Article 5 to require an informal process, whereby the individual's situation is reviewed by one or more military officers. Such reviews more than fully satisfy Article 5 requirements, and were actually endorsed by the plurality in the Supreme Court's recent decision in Hamdi v. Rumsfeld. In accordance with that decision, the U.S. is now reviewing the cases of the Guantanamo detainees, not because they are entitled to Article 5, but because the Court suggested that as a useful model for the minimal process it found to be required.

Finally, switching to policy for a moment, the most troublesome implication of your approach is that treating captured al Qaedas and Talibs as honorable POWs would, inherently and inevitably, legitimize their tactics. Over the past several centuries, the laws of war have struggled to impose some limitations on how hostilities can be waged, and by whom. POW rights are purposefully reserved for honorable, lawful combatants. Such privileges are not appropriate for unlawful combatants, and withholding them is one important means of encouraging some basic compliance with the laws of war.

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Martinez: 9/15/04, 04:11 PM
At the end of your last post, you suggest that treating Taliban and al Qaeda fighters captured in Afghanistan pursuant to the terms of the Third Geneva Convention would legitimize their tactics, and that withholding Geneva Convention protections is an important means of encouraging compliance with the laws of war. Holding military commission trials that do not afford basic due process is not a wise or appropriate means of encouraging compliance with the laws of war. That's like saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself. I do not at all disagree that captured combatants who have violated the laws of war—for example, by not donning uniforms, not bearing arms openly, or targeting civilians—ought to be subject to criminal prosecution for war crimes. If convicted, they should face severe penalties. But the process by which those convictions are achieved should be consistent with the due process norms of the U.S. Constitution and with international law.

Your suggestion that the Third Geneva Convention allows a government to determine on a blanket basis that no member of the army of an opposing state party to the Convention qualifies for POW protection—for example, that no member of the Taliban army is protected—is flatly contrary to the purpose of the Convention. Article 4 of the Convention makes clear that soldiers are protected in covered international armed conflicts even if they profess allegiance "to a government or authority not recognized the Detaining Power." We don't like the Taliban. Nations usually don't like the government they're going to war against. That's why we have the Geneva Conventions, which protect the soldiers of our enemies—and our soldiers when they fall into enemy hands. Would we want Saddam Hussein to have been able to declare that all captured American troops were not protected by the Third Geneva Convention because some of our special forces did not wear uniforms, or because he believed that the U.S. had violated the laws of war by hitting civilian targets in Baghdad?

To the extent al Qaeda members fighting in Afghanistan in conjunction with Taliban troops were "members of other militias and members of other volunteer corps . . . belonging to a Party to the conflict," they were also covered by the presumption of POW status under the Third Geneva Convention, notwithstanding the fact that they were also members of al Qaeda. Your suggestion that an al Qaeda member fighting as a member of a militia with the Taliban could be denied POW status even if he fulfilled the four criteria for lawful combatancy also plainly contradicts your argument about providing incentives for compliance with the laws of war.

To be sure, the U.S. would not be obliged to grant privileged belligerent status (that is, immunity from prosecution simply for having engaged in combat, even if otherwise fully complying with the laws of war) to al Qaeda members fighting against the U.S. outside the context of an international armed conflict covered by the Geneva Conventions. If al Qaeda members showed up tomorrow at the Pentagon wearing uniforms, bearing arms openly, and marching neatly in military formation before opening fire on a crowd of our uniformed soldiers, we would be allowed to prosecute them for having done so (whereas we would not have been able to prosecute a unit of Iraqi soldiers who did the same during our invasion of their country).

The question of how we should prosecute al Qaeda members arrested far from any zone of combat is a separate one, which I again hope to address in my next post.

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Rivkin & Casey: 9/16/04, 11:51 AM
The status of an individual as a lawful or unlawful combatant is, in fact, critical to determining what process he may be entitled to if and when he is criminally charged. As a general rule, lawful combatants, who are entitled to POW status under the Geneva Convention, are also entitled to be tried in the military courts of the detaining power on terms no less favorable than those enjoyed by the detaining power's own soldiers. (This, at least, is how the U.S. has implemented the Convention.) Unlawful combatants do not enjoy these particular rights because they have not, by otherwise conducting themselves as honorable warriors who comply with the law of armed conflict, earned them.

Unlawful combatants do have the right, under customary international law, to certain basic due process guarantees. When the relevant state practice is consulted here (most importantly, the military commissions established by the Allies after World War II), the process that is due in such circumstances can be stated as follows: the right to know the charges, the right to a hearing before a panel of officers and the opportunity to make a defense, the right to counsel, and the right to have any sentence confirmed by a higher military authority—such as a convening officer. There is no right of appeal into the civilian court system.

Obviously, these rights are far more restrictive than those guaranteed to civilians under the Bill of Rights, but the courts have long accepted that the rights of combatants and non-combatants are fundamentally different. In particular, the use of military commissions to try unlawful combatants was upheld by the Supreme Court in Ex parte Quirin, which remains good law. Whether such commissions are "kangaroo" courts is very much a matter of political/ideological, rather than legal, opinion. However, readers should note that when military commissions were last used on a widespread basis (after World War II), there were hundreds of acquittals and that the military commissions established by President Bush in the current war guarantee more protections to the accused than did their World War II counterparts. Those guarantees are, in fact, fully comparable to the due process provided to defendants in the United Nations' international criminal tribunals for the Former Yugoslavia and Rwanda, which have been widely acclaimed by human rights NGOs and academics. Indeed, if the U.S. military commissions are "kangaroo" courts, because they do not offer to combatants the guarantees otherwise accorded to civilians under the Bill of Rights, then so are these institutions, as well as the much praised permanent International Criminal Court, which offer a reduced level of due process to combatant and civilian without distinction.

As to "blanket" determinations under Geneva Convention III, these are entirely consistent with that instrument's text and purpose. The provision you cite, regarding allegiance to unrecognized governments, was designed to address the de Gaulle issue we mentioned in our last post. It has nothing to do with the broader question whether a state's armed forces meet the four criteria necessary to be considered lawful combatants. This determination, in fact, must always be on an institutional, rather than individual, basis, since individuals alone cannot meet the requirements. The force they fight with must, as a whole, have a regular command structure, wear uniforms, carry arms openly, and otherwise conduct its operations in accordance with the laws of war.

At no time did the Taliban meet these requirements. Among other things, that group regularly targeted civilians and actually put cities to the sack—as a matter of policy. Its leader, Mullah Omar, himself rejected international law as an un-Islamic, Western innovation that had nothing to do with them. This is why the Taliban were not lawful combatants entitled to POW status under Geneva Convention III. The fact that the United States never recognized the Taliban as Afghanistan's legitimate government was, and remains, quite irrelevant to this analysis. Nor does this analysis threaten U.S. troops. Because this is an institutional test, the fact that some individualsצor even individual units—are unlawful combatants does not affect the status of the larger force—if it meets the requirements overall.

This also is the reason that the Taliban, and associated al Qaedas, do not, and could not, benefit from the presumption of POW status established in Article 5—even assuming that the Geneva Convention applied to them. This presumption arises only if there is some doubt regarding whether or not an individual is a lawful combatant, and an individual cannot be a lawful combatant unless he is, or could be, associated with a group of lawful combatants. If there is no such group on the scene, there simply is no doubt to resolve.

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Martinez: 9/17/04, 04:07 PM
The military commissions set up to try suspected terrorists do not meet current standards of due process under either domestic constitutional law or international law.

As I explained in a previous post, the U.S. Supreme Court's interpretation of "due process" in criminal proceedings has changed substantially since the last commissions were held in World War II. As you acknowledge, the international laws of war, including the Geneva Conventions, require that trials even of those not entitled to POW status meet international justice standards. And the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, provides that in any criminal case, "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." The military commissions fail this test miserably, for they are neither fair, public, competent, independent, nor established by law.

You draw a comparison to the procedures employed by the international criminal tribunals in the Hague, but the military commission procedures provide differ from those used in the international tribunals in several important ways. Consider the independence of the tribunal. Commission defendants lack the right to appeal to any authority outside the very chain of command that brought the prosecution in the first place; defendants in the Hague have their appeals reviewed by an independent chamber of judges with no connection to the prosecution. Consider competence. The judges in the Hague are all lawyers with extensive training in criminal procedure and the laws of war; as recounted in my earlier post, most members of the military commissions—though earnest and decent individuals—are not lawyers and lack training in the law. Consider basic fairness. Defendants in the military commissions have been restricted in their choice of lawyers, and their assigned military defense lawyers—who have nevertheless carried out their jobs zealously and professionally—have been given inadequate office space, assistance, and resources. While prosecutors enjoy an entire floor in Guantanamo, the six defense lawyers have been placed in a single, cramped room with only four computers and one old copying machine. For a time, they were reduced to working on the floor when their conference table was removed. Defendants in the Hague are allowed to retain counsel from their home countries who speak their language and are given adequate resources to carry out their defense. Consider legality. The current military commissions were not established through legislative channels normally required to enact laws in our system, but by executive fiat. The international criminal tribunals were established by the mechanisms normal in international law, namely the U.N. Security Council acting under its Chapter VII authority in the case of the ad hoc tribunals, and valid treaty-making process in the case of the International Criminal Court. Consider the non-public nature of the military commission trials. As I said before, is it any wonder that the U.S. government does not want any part of the commission proceedings broadcast to the world?

Moreover, the military commission regulations allow the trial of individuals whose offenses were not committed in the context of and associated with armed conflict. While I do not deny that some incidents of international terrorism may rise to the level of armed conflict, there is no precedent for treating all suspected terrorists as "combatants"—regardless of their level of connection to any organized military force and regardless of whether they have directly participated in armed conflict. The trial by military commission of individuals lacking such connections has been illegal in the U.S. since the Civil War, when the Supreme Court held in Ex Parte Milligan that an individual in Union territory who was part of a secret militia allied with the Confederacy and who had planned to engage in violent acts of sabotage was nevertheless constitutionally entitled to be tried in civilian court.

The military commissions are fatally flawed, and should be abandoned. Suspected terrorists who meet the definition of combatants under international law should be tried in courts-martial, while those who do not meet the definition of combatants should be tried in civilian courts.

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