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MILITARY COMMISSIONS:
SOME PERHAPS LEGAL, BUT MOST UNWISE
Professor Jordan J. Paust
University of Houston Law Center
JURIST Guest ColumnistWhen I was a Captain on the faculty of the Army JAG School during the Vietnam War, we worked up a military commission on paper to try ex-service persons for alleged war crimes. DOD also prepared a study on such a commission in 1970. Government officials and/or President Nixon nixed the idea, however, stating that it was politically "too hot" to live up to our obligations under international law to bring those reasonably accused into custody and then to initiate prosecution or extradite, thus setting up a continual violation of international law by the United States. See, e.g., 50 Tex. L. Rev. 6 (1971). The military commission would have generally followed the Federal Rules of Criminal Procedure, and we wanted to have former federal judges as judges in order to assure that convictions were less likely to be challenged in view of the expansion of due process guarantees since World War II. The 1970 DOD study noted that jury trials are not required, but “specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial,” and “[b]oth logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible.” Further, “Congress directed the President to establish procedures for courts-martial or other military tribunals which follow, to the extent practicable, the principles of law and rules of evidence generally followed in United States district courts. Article 36, UCMJ, 10 U.S.C. § 836,”
Previously, in 1951, the United Nations Command in Korea had set up other military commissions on paper. They were never activated but would have guaranteed the same procedural rights to due process that existed in general courts-martial in the U.S. military and that are required under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, including the rights to counsel, to a “reasonable opportunity to consult with his Counsel before and during trial,” to at least three weeks notice of charges before trial and at least two weeks to prepare a defense, to interpretation of charges and “the substance of the proceedings” as well as any documentary evidence, to remain silent, to cross-examine adverse witnesses, to a presumption of innocence “until his guilt is established by legal and competence evidence beyond a reasonable doubt,” and to trial in compliance with “the rules of evidence prescribed in the Manual for Courts-Martial, United States, 1951.” See U.N. Supplemental Rules of Criminal Procedure for Military Commissions of the United Nations Command, Korea, in Paust, Bassiouni, et al., International Criminal law Documents Supplement 155-61 (2000).
The President's Commander-in-Chief power to set up military commissions apparently ends when peace is finalized. See, e.g., Ex parte Quirin (1942); In re Yamashita (1946); Paust, Bassiouni et al., International Criminal Law 309-10 (2d ed. 2000); Digest of Opinions of the Judge Advocate General 1067 (1912). Presently, we are clearly at war (however undeclared) in Afghanistan (i.e., the insurgency between the Taliban and the Northern Alliance was upgraded to an international armed conflict when the U.S. used military force in Afghanistan on October 7th) and in the Gulf region with respect to Iraq (i.e., regarding the continuing international armed conflict in that region)-and both international armed conflicts trigger application of the 1949 Geneva Conventions and other customary laws of war. While the "war" remains, we could set up a military commission to try those reasonably accused of terrorism in violation of international law, crimes against humanity, genocide, or war crimes, as we did with respect to the trial of General Yamashita for war crimes. However, the relevant Commander-in-Chief power would appear to end when "war" (not merely "hostilities") ends. Thus, it may not be in our long-term interest to set up such a military commission to prosecute all who are reasonably accused, as opposed to setting up a regional or more general international criminal court by Executive Agreement. A regional or more general international criminal court with jurisdiction over impermissible acts of terrorism would be able to prosecute accused long after peace is reinstated.
Additionally, we have told the world that we are fighting terrorism for democratic values and freedom. Certain forms of military commissions could appear to be most inappropriate in view of what we stand for and what we have told the world we are fighting for and against. Military commissions are generally suspect under newer international criminal law-human rights treaties. See, e.g., the Inter-American Convention on the Forced Disappearance of Persons. At a minimum, such commissions must now comply with Article 14 of the International Covenant on Civil and Political Rights, which the ICTY and ICTR recognize, among others, sets forth a minimum set of customary and treaty-based human rights to due process. These rights include the general right to “a fair and public hearing by a competent, independent and impartial tribunal established by law,” although the press and public can be excluded for reasons, for example, of “public order (ordre public) or national security in a democratic society”; the right to be presumed innocent until proved guilty; the right to be informed promptly and in detail in a language the accused understands of the nature and cause of the charge(s) against him; the right “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”; the right “to be tried without undue delay”; the right “to be tried in his presence, and to defend himself in person or through legal assistance of his choosing”; the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf”; the right “to have the free assistance of an interpreter”; the right “not to be compelled to testify against himself or to confess guilt”; and the right “to have his conviction and sentence...reviewed by a higher tribunal according to law.” Section 4 (C) (8) of President Bush’s November 13th Executive Order clearly violates the human right to an appeal in a higher tribunal. Also, under Article 7 of the International Covenant and customary human rights law, torture and cruel or inhumane treatment clearly would be illegal. Politically at least, other common rules of evidence adopted by the ICTY and ICTR should form part of the rules of evidence of any military commission that the U.S. creates. Additionally, foreign states cannot lawfully extradite accused to the U.S. when there is a real risk that their human rights will be violated. See, e.g., Chahal v. United Kingdom, Eur. Ct. H.R. (1996); the Soering Case, Eur. Ct. H.R. (1989).
There are also important constitutional issues involving due process, especially in view of the rationale in Reid v. Covert (1957) concerning the power or authority of the government of the United States (despite cases like Eisentrager). See also United States v. Yunis (D.C. Cir. 1988); United States v. Tiede (U.S. Ct. for Berlin 1979), extracts in Paust, Bassiouni, et al., supra. The Reid rationale is consistent with the myth system adopted since the Founders that ours is a government of delegated powers and one that is entirely a creature of the Constitution and has no power or authority to act here or abroad inconsistently with the Constitution. See also Ex parte Quirin (“Congress and the President...possess no power not derived from the Constitution.”). Under this approach, the major question is not whether aliens abroad in time of war have rights, but whether our government has any power or delegated authority to act inconsistent with the Constitution. See also Ex parte Milligan (1866) (recognizing that the Executive has no powers outside the Constitution or ex necessitate, that the Constitution “covers within the shield of its protection all classes of men, at all times, and under all circumstances,” and, importantly, that trials must occur in federal district courts when such courts are reasonably available). One specific question is whether or not the President, without approval by Congress, has the power to suspend habeas corpus, as he attempts to do so under Section 7 (B) (2) (i) of the November 13th Executive Order. Although President Lincoln did so during the Civil War, it is not clear that his action was constitutional, especially since suspension is addressed in Article I of the Constitution in connection with congressional powers and Congress actually ratified Lincoln’s action in 1863. See Youngstown Sheet & Tube v. Sawyer (1952) (Douglas, J. concurring), citing Ex parte Merryman (1861). Further, habeas corpus review was available to accused in Ex parte Milligan, Ex parte Quirin, and In re Yamashita, and such review has been expanded in cases like United States v. Calley. Additionally, the Court in Ex parte Quirin recognized that military commission decisions can be “set aside by the courts” when there is “clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.”
Other constitutional issues are whether or not the President can set up a military commission outside of occupied territory during an armed conflict. In 1865, Attorney General Speed advised the President: “A military tribunal exists under and according to the Constitution in time of war. Congress may prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure. Should Congress fail to create such tribunals, then, under the Constitution, they must be constituted according to the laws and usages of civilized warfare,” but adding that it would be “palpably wrong” to conclude that war crimes should not be prosecuted in civil courts. 11 Op. Att’y Gen. 297 (1865). From his opinion, it appears that presidential power is tied to a war circumstance and law of war competencies such as the competence of an occupying power to set up a military commission to try violations of the laws of war. However, Ex parte Quirin involved a military commission set up within the United States, within the convening authority’s field of command, in that case, the President.
In general, President Bush’s November 13th Order denies the United States needed flexibility to prosecute those reasonably accused of terrorism in a federal district court or regional or more general international fora (especially regarding those accused who are later found in various countries outside the region of Afghanistan and with respect to whom U.S. extradition requests are made); sets up violations of human rights of the accused concerning an appeal to a higher tribunal; creates constitutional problems concerning due process and the right to habeas corpus; and needlessly places some prosecutions at risk.
Jordan J. Paust is Law Foundation Professor, University of Houston, and Director of the International Law Institute. He welcomes comments on this essay at JURIST@law.pitt.edu.November 14, 2001