A REALISTIC LOOK AT TERRORISM TRIALS BY MILITARY COMMISSION

Transcription

1 A REALISTIC LOOK AT TERRORISM TRIALS BY MILITARY COMMISSION by Mitchell L. Lathrop November 2001 Luce, Forward, Hamilton & Scripps LLP 777 South Figueroa Street Citicorp Center Thirty-Sixth Floor 153 East 53rd Street Los Angeles, California Twenty-Sixth Floor Telephone: (213) America Plaza New York, New York Facsimile: (213) West Broadway Telephone: (212) Twenty-Sixth Floor Facsimile: (212) San Diego, California Rincon Center II Telephone: (619) Spear Street Facsimile: (619) Wilshire Boulevard Suite 200 Suite 1600 San Francisco, California Los Angeles, California Telephone: (415) Telephone: (310) Facsimile: (415) Facsimile: (310) Internet: Copyright, 2001, Mitchell L. Lathrop. All rights reserved.

2 A REALISTIC LOOK AT TERRORISM TRIALS BY MILITARY COMMISSION By Mitchell L. Lathrop 1 Introduction On November 13, 2001, President Bush signed an Executive Order allowing the government to try accused terrorists before military commissions rather than in federal courts. The Executive Order generated considerable debate and controversy among civil libertarians and members of the public at large. Much of this debate highlights a lack of understanding of how military commissions established under the Executive Order will function. It is important to analyze what the Executive Order does, and does not, do. Three days after the September 11th attacks on the Pentagon and the Word Trade Center, and the crashing of a civilian airliner in Pennsylvania, the President declared a national emergency and sent the required report to Congress. The same day Congress responded by passing a joint resolution authorizing the use of U. S. Armed Forces against those responsible for the September 11th attacks launched against the United States. 2 In October 2001 Congress took further steps against terrorism by passing the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ( USA Patriot Act ), which gave expanded powers to law enforcement and government agencies to act against suspected terrorists. 3 The 1/ 2/ 3/ Mr. Lathrop is a retired Captain in the Judge Advocate General Corps of the U.S. Naval Reserve. He received his B.S. degree from the United States Naval Academy and his J.D. degree from the University of Southern California. In addition to California and New York, Mr Lathrop is also licensed in the District of Columbia and is admitted to practice before the U.S. Supreme Court. He is a certified trial and defense counsel before U.S. courts-martial. He is also a member of the American Board of Trial Advocates and is Board Certified as a Civil Trial Specialist by the National Board of Trial Advocacy. Mr. Lathrop may be reached by at <mlathrop@luce.com>. The joint resolution authorized the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. The joint resolution was intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. (107th Congress, 1st Session, S.J. Res. 23, September 14, 2001.) Among other provisions, the far-reaching USA Patriot Act created a counterterrorism fund; increased funding for the technical support center at the Federal Bureau of Investigation; expanded Presidential authority under the International Emergency Powers Act (50 U.S.C. 1702);

3 President was also given the authority to confiscate the property of terrorists and their supporters. 4 The Congressional intent was clear that all necessary steps must be taken to eliminate and protect against terrorism. The President s declaration of a war on terrorism had met with complete bi-partisan support from the Congress. Background The power to make all laws necessary and proper for carrying the provisions of the Constitution into execution rests with Congress. That applies not only to its own powers, but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. 5 At the same time, the President is the country s chief executive, vested with all executive power, and is Commander-in-Chief of the U.S. Armed Forces. 6 Among the numerous laws passed by Congress and signed into law by the President is the War Powers Resolution, 7 which expressly provides: It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of authorized enhanced surveillance procedures and the interception of wire, oral, and electronic communications relating to terrorism; expanded surveillance authority under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805); authorized nationwide service of search warrants for electronic evidence; created special measures for jurisdictions, financial institutions, and international transactions of primary money laundering concern; included foreign corruption offenses as money laundering crimes; authorized the exercise of long-arm jurisdiction over foreign money launderers; increased civil and criminal penalties for money laundering; authorized the Attorney General and the Secretary of State to pay rewards to combat terrorism; authorized DNA identification of terrorists and other violent offenders; and strengthened criminal laws against terrorism. 4/ 5/ 6/ 7/ [W]hen the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, [the President may] confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes. USA Patriot Act, 106. U.S. Constitution, Article I, section 8. U.S. Constitution, Article II, sections 1 and 2. Title 50 U.S.C. chapter 33. 2

4 United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. 8 Constitutionally designated as the Commander-in-Chief of all United States Armed Forces, the President, under the War Powers Resolution, may introduce U. S. Armed Forces into hostilities under three circumstances: (1) when Congress issues a declaration of war; (2) when Congress passes specific statutory authorization; or (3) when there is a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. 9 Few will disagree that the bombings of the U.S. embassies in Kenya and Tanzania, and of the U.S.S. Cole, as well as the assaults of September 11th, constituted attacks upon the United States. As such, any of these events gave the President the authority to exercise his war power to authorize a military response. The power of the President under such circumstances is not without limitation. 10 The President must first declare a national emergency. 11 A report to Congress must be submitted by the President. 12 Congress must then give the President express statutory authority to continue the use of U.S. military forces during the period of national emergency or the President s authority automatically ceases after sixty days and the armed forces must be withdrawn. 13 Congress, if it so chooses, can even cause the President to cease military action in a shorter period. 14 The American Criminal Justice System 8/ 9/ 10/ 11/ 12/ 13/ 14/ 50 U.S.C. 1541(a). 50 U.S.C. 1541(c). See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, , 72 S. Ct. 863, 866, 96 L. Ed. 1153, 1166 (1952) ( President s power... must stem either from an act of Congress or from the Constitution itself. Where the Government failed to follow statutory authority because it was much too cumbersome, involved, and time-consuming for the crisis which was at hand, the Supreme Court affirmed an injunction against the governmental action.). 50 U.S.C authorizes the President to declare a national emergency. Congress must be informed and the declaration published in the Federal Register. The special powers and authorities conferred on the President during a national emergency are effective only during the period of declared national emergency. 50 U.S.C. 1544(a). 50 U.S.C. 1544(b). 50 U.S.C. 1544(c). 3

5 Persons accused of crimes in the United States are presumed innocent until proven guilty. That concept is a long-recognized cornerstone of American democracy. The accused is entitled to be tried by a jury of his or her peers, and no person may be deprived of life, liberty, or property without due process of law. 15 At the same time, procedural rules and court decisions - however well intentioned - have resulted in lengthy delays in bringing criminals to justice. In some cases, criminals slip through the justice net altogether. 16 This is not meant to cast criticism on the American system of justice. It is merely to point out that the system is not perfect. The common adage, justice delayed is justice denied, cannot be overlooked. Criminal defense lawyers are typically given wide latitude in representing their clients. Some resort to extensive use of the media as an adjunct to their courtroom presentations. Public opinion is used to sway juries notwithstanding instructions given by the court. Abuses are common. While the American system is still one of the best ever devised by humankind, it has readily identifiable and elusive flaws. All too often lawyers and the public alike forget that it is not the duty of a criminal defense lawyer to secure an acquittal for his or her client. It is his or her duty to (1) insure that only legal and competent evidence is introduced against the client, and (2) to present all legal and competent evidence which may be available on the client s behalf. When the deficiencies of the American criminal justice system are coupled with the arsenal of procedural devices available to accused persons, it seems apparent why the President decided to issue his Executive Order. For example, consider the case of a terrorist who has never set foot in the United States and is the citizen of a foreign country. He has actively aided terrorists who have committed terrorist acts against the United States. He is captured by U.S. miliary personnel and transported against his will to the United States for trial. Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays / 16/ 17/ U.S. Constitution, Amendments 5, 6 and 14, 1. For an interesting, if highly subjective, narrative, see Dunne, Dominic, Justice (Simon & Schuster, New York, 2001). Applying the laws of other nations could easily result in similar delays. The terrorist bombing of Pan Am flight 103 over Lockerbie, Scotland, occurred on December 21, Two accused Libyan terrorists were eventually brought to trial under Scottish law in the Netherlands. Three Scottish judges sitting without a jury presided over the case. On January 31, 2001, over 12 years 4

6 National security considerations further reinforce the President s decision. Classified information cannot be disclosed to those not authorized to receive it. To force the government to disclose its methods and techniques for information gathering against terrorists in open court would be foolhardy at best and would compromise its effectiveness permanently. Disclosing identities could result in the loss of intelligence agents at home and abroad. The myriad of evils which could flow from public disclosure of national security information cannot be overestimated. The Executive Order By its very terms, the Executive Order applies only to non-u.s. citizens. U.S. citizens continue to enjoy the same constitutional rights which they had before September 11th. A U.S. citizen cannot be tried by a military tribunal unless he or she is a member of the U.S. Uniformed Services, in which case court-martial jurisdiction would attach. 18 The Executive Order does not give the President sweeping or unlimited powers to order the trial of terrorists by military commission. Its applicability is limited and subject to a number of jurisdictional prerequisites. The Executive Order by its own terms applies only on an individual, case-by-case basis. As a threshold procedure, to invoke the provisions of the Executive Order, the President must make two essential determinations, which must be set forth in writing. First, the President must determine that the individual who is made subject to the Executive Order: (1) is or was a member of the organization known as al Qaida; (2) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (3) has knowingly harbored one or more individuals as described in (1) or (2) above. Second, the President must make a determination that it is in the interest of the United States that the individual be subject to the Executive Order, i.e., the individual should be after the crime was committed, the verdict was announced. One terrorist was found guilty, while the other defendant was acquitted. The case is now on appeal. 18/ The term U.S. Uniformed Services is considerably broader than U.S. Armed Forces. See the discussion, infra. 5

7 tried by a military commission. Just as U.S. courts-martial can sit anywhere in the world, 19 so can the military commissions appointed under the Executive Order. 20 The Executive Order gives the Secretary of Defense, as a military function, the power to issue orders and regulations for the appointment of military commissions. The phrase as a military function is important, since it presupposes that many of the provisions found in military law will be applied. When issuing orders and regulations for the trial of individuals made subject to the Executive Order by the President, the Secretary of Defense must, at a minimum, provide for a full and fair trial, with the military commission sitting as the trier of both fact and law. The presiding officer of the military commission, who would presumably be a Military Judge qualified under the Uniform Code of Military Justice ( UCMJ ), 21 would rule on the admissibility of evidence. 22 Proffered evidence must be found to have probative value to a reasonable person, and in that respect the more formal Federal Rules of Evidence 23 are relaxed under the Executive Order. The Executive Order mandates the protection of classified information, and the Secretary of Defense is directed to promulgate specific rules covering the handling of, admission into evidence of, and access to classified materials and information. Presumably those issues will be handled by closing the proceedings to all but those cleared for access to classified information and limiting access to transcripts of military commission proceedings which involve classified material. The accused is expressly given the right to defense counsel. The rules of procedure governing the conduct of the prosecution by attorneys designated by the Secretary of Defense, and the conduct of the defense by attorneys for the individual defendant, will also be promulgated by the Secretary of Defense. Military law and precedents, as well as Disciplinary Rules, already cover such matters in detail, and can be easily modified to fit the special circumstances of military commission trials under the Executive Order. As is the case in most courts-martial, conviction may be had only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present. Similarly, sentences can only be imposed upon the concurrence 19/ 20/ 21/ 22/ 23/ UCMJ, Article 5, 10 U.S.C Executive Order, Section 4(c)(1). 10 U.S.C. 800, et seq. See also UCMJ, Art. 26, 10 U.S.C Members of the miliary commission could overrule the presiding officer upon the request of a commission member and a majority vote of the military commission. Pub. L , 88 Stat

8 of two-thirds of the members of the commission present at the time of the vote, a majority being present. 24 Sentences may not be carried out, however, until the record of the trial has been reviewed and a final decision has been made by the President, or by the Secretary of Defense if he is so designated by the President for that purpose. Historical Precedents A frequently heard argument challenging the President s power to authorize the use of military commissions to try non-citizen terrorists is that no formal declaration of war has been made by Congress. That same argument was made in 1862 when four vessels were seized as prizes of war for failing to observe the blockade of the Confederate states which had been imposed by the President. 25 The U.S. District Courts having jurisdiction 26 all ruled that the President had lawful authority to impose the blockade notwithstanding the absence of a formal declaration of war by Congress. The district courts held the vessels were properly prizes of those Union supporters who had captured them. The cases were appealed to the U.S. Supreme Court. The Supreme Court pointed out that when the seizures occurred Congress had not formally declared war, but the seizures were upheld and the decisions of the district courts affirmed. As the high court observed: If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral. Lord Stowell (1 Dodson, 247) observes, It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other / 25/ 26/ 27/ These provisions are similar to their counterparts in the UCMJ, which requires that death penalties be imposed by unanimous vote of all the members of the court-martial present at the time the vote is taken; life imprisonment or confinement for more than ten years requires a three-fourths vote of the members at the time the vote is taken; and all other sentences shall be determined by the concurrence of two-thirds of the members at the time the vote is taken. UCMJ, article 52, 50 U.S.C The Brig Amy Warwick, et al., 67 U.S. 635, 17 L. Ed. 459 (1862). The U.S. District Courts for the Districts of Florida, Massachusetts, Virginia and New York. Id., 67 U.S. at 668, 17 L. Ed. at

9 The use by the United States of military commissions to try specified crimes in time of war is not new. In Ex Parte Quirin ( Quirin ), 28 the U.S. Supreme Court upheld use of a military tribunal to try German saboteurs who were caught in the United States during World War II. Denying a petition for a writ of habeas corpus brought by the Germans, the high court pointed out: (1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. It seems clear that the President has applied the concept of Quirin in issuing the Executive Order regarding detention, treatment, and trial of certain non-citizens in the war against terrorism. Significant changes in military law and procedure have taken place since the Quirin decision, the most important of which was the adoption of the UCMJ. 29 It seems probable that the Secretary of Defense will rely on provisions of the UCMJ in promulgating orders and regulations governing trial by military commissions. Nor is the concept of special tribunals to try certain offenses unique. The International Criminal Tribunal for the former Yugoslavia ( ICTY ) was established by United Nations Security Council resolution 827 on 25 May ICTY was given the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since ITCY was authorized to prosecute persons for four categories of offenses: (1) grave breaches of the Geneva Conventions of 1949, 30 (2) violations of the laws or customs of war, 31 (3) 28/ 29/ 30/ 31/ 317 U.S. 1, 87 L.Ed. 7 (1942). 10 U.S.C. 800, et seq. I.e., (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages. I.e., (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated 8

10 genocide, 32 and (4) crimes against humanity. 33 Much like the description of those subject to the President s Executive Order, ICTY may try any person who planned, instigated, ordered, or committed a crime in one of the four categories, as well as anyone who aided or abetted in the planning, preparation or execution of one or more of the specified crimes. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 34 The rules governing ICTY also provide that if a subordinate commits any of the specified crimes, it will not relieve his superior of criminal responsibility if the superior knew or had reason to know that the subordinate was about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 35 In addition, the fact that an accused person acted pursuant to an order of a government or of a superior does not relieve him of criminal responsibility. 36 ICTY was not a new concept. Following World War II, the governments of the United States, the French Republic, the United Kingdom and the Union of Soviet Socialist Republics established an International Military Tribunal ( IMT ) for the trial and punishment of war criminals of the European Axis. IMT was governed by a Constitution which was signed on August 8, IMT consisted of four members, each with an alternate, appointed by each of the four governments. Neither IMT, its members nor their alternates could be challenged by the prosecution, or by the defendants or by their counsel. Before any trial could commence, the members of IMT were required to agree among themselves upon the selection from their number of a President. The IMT to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. 32/ 33/ 34/ I.e., acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, such as (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. I.e., crimes committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts. Statute of the International Tribunal, adopted 25 May 1993 by U.N. Resolution 827, as amended 13 May 1998 by U.N. Resolution 1166, as amended 30 November 2000 by U.N. Resolution 1329, Article 7, Section 2 (hereinafter ICTY Statute ). 35/ 36/ ICTY Statute, Article 7, Section 3. ICTY Statute, Article 7, Section 4. 9

11 Presidency rotated based upon the votes of its members. Decisions were made by majority vote, except that convictions and sentences required a 75% affirmative vote. Trials in absentia were authorized. Procedural rules were drafted by the prosecutors. In addition, the Constitution of IMT expressly provided that: The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedures, and shall admit any evidence which it deems to be of probative value. 37 The judgment of IMT as to the guilt or the innocence of any defendant was final and not subject to review. 38 Conclusion Terrorists who become subject to the President s Executive Order will be far more fortunate than their counterparts in earlier times. They are guaranteed a full and fair trial. 39 They are guaranteed the right to counsel. 40 The final decision will rest with the President. No sentence can be carried out without the authority of the President following his review of the record of trial. 41 If the President so chooses, he can transfer jurisdiction over any individual subject to the Executive Order to another branch of government, presumably the Department of Justice, for prosecution in civilian courts / 38/ 39/ 40/ 41/ 42/ IMT Constitution, Article 19. IMT Constitution, Article 26. Executive Order, Section 4(c)(2). Executive Order, Section 4(c)(5). Executive Order, Section 4(c)(8). Executive Order, Section 7(e). 10