18 Nov The Constitutional Rights of Public Enemies in Armed Conflict
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law, and is also a former prosecutor. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.]
I write to take advantage of a generous invitation to guest blog here at Opinio Juris. I do so because the decision to try individuals such as KSM in federal court has generated concern that the Bill of Rights must now be observed to some vague extent in any such trials, and through logical extension, potentially in future military operations. Based on my current research for an article (in partial draft), I doubt that this is constitutionally required as a matter of relevant Supreme Court precedent. Let me first briefly address John Yoo’s recent WSJ comments.
Yoo’s mistake is in making a pragmatic argument about the availability of constitutional rights that can be attacked as has been done below. That said, Yoo’s pragmatic argument is a valid concern. Only an extremely limited understanding of combat operations would lead one to believe that law enforcement-like compliance with the Bill of Rights should be expected or required during armed conflict. There is no need for Yoo’s pragmatic argument, however, because precedent in this area appears to provide a different answer.
Public enemies of the United States have never been afforded the protections of the Bill of Rights. This is not based on their nationality or territorial location. A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. domestic populations – where the relationship is less clear). Properly read and placed in context, neither Boumediene nor Milligan conflict with this. Quirin and Yamashita (and many, many other cases) support it. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion.
Military law commentators expressed this conceptual framework in different ways. According to Francis Lieber, war suspended the civil laws between opposing armed forces. Therefore, their conduct and interactions (called “belligerent intercourse” by Henry Halleck) were governed only by the laws governing war, or any relevant and specifically applicable domestic law. The powers to conduct the nation’s wars are primarily shared by the political branches. This has historically included the trial and punishment of those violating international laws governing war (both enemy and friendly). These trials were not “jurisdictional gap-fillers” as Deborah frequently suggests, they were lawful measures of imposing punishment under the laws governing war. Indeed, the Supreme Court has separately held that neither military commissions nor courts-martial punishing strictly military offenses by U.S. service members exercise Article III judicial power. The court-martial system we know today, complete with military appellate and Supreme Court review, was not created until after World War II. It was then a policy decision, not a constitutional requirement.
We can debate the applicability of the laws of war to some terrorist conduct, such as pre-9/11 activities unrelated to the attacks of that day. However, if we accept that the law of war paradigm is appropriate both on and after that date, as the Court did in Hamdi, then relevant federal statutes and international laws governing war (meaning international humanitarian law and any relevant international human rights law clearly supplementing it) are the laws that govern the trial of such enemies.
This explains why military commissions, at their origins, had very loose procedural and evidentiary rules. Lieber implied that such trials need only be fair. There were no other requirements under the international or domestic law of that era according to Winthrop. For these reasons, Winthrop further states, the rules applicable at courts-martial were applied to commissions only by analogy, and a failure to follow them to the letter did not invalidate a conviction. The Supreme Court did not even review procedural matters on the rare occasions when it had jurisdiction to review certain military commissions, limiting its review only to matters of temporal (to determine whether convened during an armed conflict or occupation), personal and subject matter jurisdiction (see e.g. Yamashita). (This limited scope of review by civil courts originally also pertained to courts-martial. See Grafton v. U.S., 206 U.S. 333 (1907). In other words, neither appear to be within Hart and Wechsler’s Article I adjunct tribunals to Article III courts.)
The fact that some of these cases are being tried in Article III courts does not necessarily require them to observe constitutionally based rules of evidence, such as Fourth or Fifth Amendment case law. When the federal courts administered prize cases, which were both admiralty and law of war cases, they used certain evidentiary and procedural rules that had developed internationally. In other words, the courts applied only specifically relevant domestic and international rules, and in some cases developed others to fill lacunae. Some rules applied were different from those that would have governed a standard U.S. trial.
For me, the inescapable conclusion from a thorough analysis of Supreme Court precedent, supported by historical practice, is that the procedural and substantive rights to which KSM and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights because those protections simply do not apply. It is impossible to reconcile the view that they do with a vast body of relevant Supreme Court precedent. Fortunately, these international laws are now much more robust than they were in Winthrop’s era. Additionally, as the Court found in Hamdan, Congress had – before the Military Commissions Act – tightened the reins of permissible procedural and evidentiary rules in Article 36 of the Uniform Code of Military Justice. (The MCA removed the requirements of Article 36 for its commissions.)
It is an odd argument which posits that adherence to the rule of law requires a different view of the status and effect of that law than the view that has historically existed in the branch of government constitutionally empowered “to declare what the law is.” While I strongly disagree with Yoo’s unilateralist interpretation of the separation of war powers between the executive and legislative branches (as a matter of text, original meaning, and over 200 years of precedent), those views have no readily apparent relationship to his views regarding the potentially misguided extension of the Bill of Rights to public enemies in armed conflict. One can only hope that the courts will properly read and apply precedent, and thereby avoid the seemingly ideologically-based arguments of those unfamiliar with it. One also hopes that the administration will recognize the perils of adopting any litigation position that does not seek to maintain this line of precedent.
A question::
Given that Article III courts are not in the regular practice of trying law of war offenses and are, by habit and familiarity, inclined to view doing justice as affording defendents the full flower of civilian constitutional due process, how likely do you think it is that they would acquiess in denying such process to those detained in military counterterrorist operations, purely on the basis of putative precedent or even positive federal statute?
In other words, supposing you are legally correct, do you think the Article III courts are institutionally capable of acting in counterterrorism cases as your reading of the law suggests?
“the procedural and substantive rights to which KSM and others are entitled are only those required by federal statute or by international laws governing armed conflict. They do not stem from the Bill of Rights” Precisely correct and rather substantial. In one of the few concrete examples, a civilian trial would use the regular Federal Rules of Evidence, which excludes hearsay, instead of the special rules of evidence that Congress wrote for Military Commissions, which permits broader use of hearsay. In Federalist 84, Hamilton suggests that a Bill of Rights is unnecessary. Among other thing, courtroom procedures could be determined by statute instead of being written into the Constitution. We got a Bill of Rights anyway, but it does not apply to enemy aliens captured overseas. When it doesn’t apply, statute (as Hamilton notes) still does apply and may be perfectly adequate. There isn’t that much difference. All you lose are a few exclusionary rules invented by the court instead of being written into law. An interesting question is whether the accused has a right to demand a trial by jury. That right derives from the constitution (is there any separate statutory language independently making the guarantee?). Bench trials happen… Read more »
All of this is based on the premise that the “law of war paradigm” is the correct way to look at this. I don’t see how that can be the case, given that KSM is on trial for what was done in New York, which, to my knowledge, hasn’t been a war zone since the war of independence, if even then. KSM wasn’t even arrested in a war zone, but in Rawalpindi in Punjab, Pakistan. During the period when 9/11 was in the works, he apparently worked out of Kuwait, not Afghanistan. In other words, there is no evidence KSM has at any relevant time been anywhere near a war and he does not stand accused of any war crime. (Art. 7 of the Rome statute requires that the crimes listed be committed as part of a widespread or systematic attack against any civilian population, i.e. “a course of conduct involving the multiple commission of acts referred to (…) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”, so no dice.)
So why should we be asked to accept that the Supreme Court’s war powers precedents are at all relevant here?
“Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses, and incendiary and timing devices. While landing, they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing, they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.” ex parte Quirin. So German saboteurs that the Supreme Court ruled could be held and charged under the laws of war landed in New York state and were arrested in New York City in 1942. Nothing then logically prevents the 9/11 saboteurs from being part of an armed conflict just because they attacked NYC. Read the 9/11 Commission Report and you will find that KSM did indeed work out of Afghanistan from late 2000 through 2001. After the death of his superior, Mohammed Atef, KSM was promoted and became the highest ranking military leader of foreign forces in the Taliban army. However, the US has never formally acknowledged that he held… Read more »
John, I’m delighted to see you guest-blogging here. And thanks for the informative post. I too think the nagging question is indeed the choice of the “law of war paradigm” (hereafter the ‘war model’) rather than “law/crime” model, and although I often defer to (or am persuaded by) Larry May’s reasoning on such matters, I think his admittedly tepid conclusion in this instance is wrong: “I’m inclined to think that the war model makes more sense” (in War Crimes and Just War, 2007: 310). Here’s why: at least insofar as we’re dealing with al-Qa‘ida militants, preference for the war model has perverse even if unintended effects, owing to the militant’s collective self-description or self-understanding as jihadists within the Islamic tradition. The Islamic legal tradition (of Shari’ah and fiqh), which admittedly is no longer as intellectually vigorous and relevant in the manner it once was in the Islamic world, understands (the ‘lesser’) jihad (the ‘greater’ jihad of course being the personal struggle against evil and for the good, entailing such things as self-purification and self-discipline) as something very much like (if not identical to) in significant respects, the Just War tradition that begins with Augustine, is philosophically fortified… Read more »
Corrections to my comment (I was a tad tired last night):
In the second para.: “With Martin above, I think the nagging question surrounds the choice between the “law of war paradigm” (hereafter the ‘war model’) and the “law/crime” model….”
In same para.: “militants’ collective self-description…”
In the parenthetical remark in the fifth para. please delete “e.g.”
Martin, In response to your bringing up the Rome Statute – Article 7 refers to Crimes Against Humanity. You mention the chapeau element for a CAH requiring it to be “a widespread or systematic attack directed against any civilian population”. If you refer to the ICTY Appeals Chamber Judgment of 12 June 2002 on P v Kunarac et al. they clearly interpret under IV B 2, 3, 4 and set the precedent for the reading of “widespread or systematic attack directed against any civilian population” which in my reading would clearly apply here. Additionally, under Article 25 Individual Criminal Responsibility, KSM would fall under that jurisdiction. However, since you bring up the Rome Statute. Two bigger issues are present. First, the US is not a signatory. Second, even if they were, since the Rome Statute did not go into effect until July of 2002 and this event happened in 2001, under Article 11 there would be no jurisdiction ratione temporis. Finally, you try to use Article 7 to show it is not a War Crime, that is not a war crime article, that is a Crimes Against Humanity Article. Under the Rome Statute, War Crimes are Article 8 violations. So… Read more »
The Pentagon was a legitimate military target. The WTC was an economic target with many civilian casualties. Had “the planes operation” hijacked cargo jets on the ground and crashed them into the same buildings, we might be arguing about war, war crimes, and simple crimes. However, there are specific international laws about hijacking commercial airliners. That is never a lawful military act and those who do it are air pirates and lose any claim to combatant status. Whatever happens after that is simple mass murder, even at the Pentagon. However, the 19 hijackers were all soldiers selected from the foreign fighters of the Afghan Army under the Taliban, and the operation was planned and commanded by foreign commanders who were part of that army. This could be allowed to confuse things. If it were up to me, I would charge KSM for the hijacking and for the deaths of the air crew and passengers on the four planes. He can only be executed once, and adding charges for people on the ground, especially in the Pentagon, will simply subject us to hours of his ranting about what he sees as military necessity in war. Let him be charged for piracy… Read more »
@Howard Gilbert: I’ll grant that ex parte Quirin probably allows for a “war paradigm” here. I do think, though, that it is distinguishable if the judge/judges/justices were so inclined. The big problem is that Quirin and the other were part of an organised army. For international law purposes, it has always been tricky to decide whether the Taliban are, in fact, an army, i.e. whether they have the level of internal organisational structure, with hierarchy, some measure of rules of engagement, etc., that they can be considered an army for legal purposes, even without uniforms. I’d say the same goes for Al-Qaeda. Just because Congress authorised the use of military force on them, doesn’t mean Al-Qaeda is an army. (Side question: Did Congress avoid using the term Declaration of War because such a thing has gone out of fashion, or because they were unsure about whether they could, in fact, declare war on all the entities they intended to authorise the use of military force against?) Given that Ex parte Quirin allows but not compels the result advocated in the original post, we’re back to more pragmatic arguments, such as the ones suggested by you , and by Patrick O’Donnell… Read more »
Nathan makes a very valid point. It is very likely that the courts will default to determining to what extent the protections of the Bill of Rights should apply rather than if they do. My position would be one of many the government might assert. I fear it would be one they might shy away from for political rather than legal reasons. The issue is also complicated by the context of these cases. The issue is too complex to go into the necessary detail here. Suffice it to say that prize courts operated pursuant to a jurisdictional grant and administered primarily the law of nations (or applicable treaties, domestic statutes, controlling executive acts or judicial decisions as spelled out in Paquete Habana). These criminal cases will necessarily entail prosecution of a statutory offense implementing the law of nations. For that reason, I believe the prize courts had greater flexibility than might be constitutionally permissible in these cases. As I have stated here before, there are many ways to potentially exclude coerced evidence without resorting to the Fifth Amendment. I do not intend to suggest such evidence may be properly admitted as a general matter. Additionally, rules promulgated by statute or pursuant to statutory authority obviously still… Read more »
I here argue only that protections of the Bill of Rights should not be found to apply in any way so long as the government was acting pursuant to its war powers when evidence was collected or obtained.
That sounds eminently sensible.
But then, I agree with that line from Alexander Hamilton quoted by Howard Gilbert above. The Supreme Court, in cases such as Mapp, has written too much procedural law into the Bill of Rights, making it excessively rigid, incapable of being updated or adapted to different circumstances.
(Mapp, specifically, means that it is impossible for US lawmakers to enact different “punishments” for unlawfully obtained evidence, such as a reduction in sentence if found guilty.)
Congress could not use the term “war” because an “act of war” invalidates all insurance coverage for 9/11. Warren Buffett led the insurance industry in agreeing to cover damages as long as the term “war” was not used. There is a country called Afghanistan (it is on every map, it is a member of the UN, it is a signatory to the Geneva Conventions). In 2001, 90% of it was controlled by a government led by the Taliban (alternately, it was run by a Pashtun tribal alliance in which the Taliban were the leading element, al Qaeda was incorporated as an honorary “tribe”, and the Pakistani military also played a support role in the leadership). The army of 45,000 light infantry (10,000 from Pakistani Pashtun tribes with staffing from Pakistani officers who “retired”, walked across the border, and “volunteered” in Afghanistan) was engaged in a civil war with what we called the “Northern Alliance”. Since the communist Afghan Army in the 1980s was allied with the Russians, in the great war of liberation everyone wearing a uniform was a bad guy and every good guy was a tribal fighter. So suggesting that the Afghan Army in 2001 wear uniforms was… Read more »
Question:
In reference to Howard Gilbert’s 10:17 am post, if KSM is tried under the “law/crime” model, how and to what extent will the way in which he was detained and the methods used to extract his testimony interfere with the “clear international and US domestic law” on the charge of piracy?
@Howard Gilbert: At least one problem with your argument is that, as far as successive US governments were concerned, the Taliban were never the legitimate government of Afghanistan.
Martin: Article 4 incorporates “(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”
Recognition of the government is specifically NOT an issue in GC coverage. Obviously “regular armed forces” doesn’t necessarily include a dozen or a hundred irregular guys, but 45,000 soldiers is larger than the standing army of about 100 other member states of the UN.
Savannah: Obviously statements extracted through torture are excluded. I would, however, argue that his statements to the Military Commission years later, in another part of the world, after repeated warnings about self-incrimination and the right to remain silent, are admissible. The stuff in the middle is up for discussion. However, if he pleads guilty then evidence doesn’t matter, and there may be enough evidence in his papers and on his computer to convict him without his statements. The most exotic possible outcome would be for Jose Padilla to trim a few years off his sentence by agreeing to testify about his two weeks of training with KSM and the other 4 defendants in the second half of March, 2002.
However, the 19 hijackers were all soldiers selected from the foreign fighters of the Afghan Army under the Taliban
Is this correct? I’ve never seen that all 19 hijackers were Taliban members.
Howard Gilbert: Thank you for clarifying!
The Taliban were an Afghan movement. They were the leading element of the government. Foreign fighters who received training at the al Farouq camp and then joined the Army were subject to orders from the government led by the Taliban, but they were not “Taliban members” (any more than the entire US Army changed from Republican to Democratic last January).
KSM is said to have hand picked the 9/11 hijackers from the pool of foreign fighters trained at al Farouq, although the individual records are incomplete and I cannot prove it in each case.
[…] as John Dehn of Opinio Juris writes, this might be irrelevant: Public enemies of the United States have never been afforded the […]
Like others have noted, a lot of this turns on whether, as a matter of law, there is an ongoing war that can justify departures from the procedures of regularly constituted Article III courts. It’s worth noting that there have been dozens of terrorism cases tried in Article III courts (many of which have been against Al Qaeda affiliates), and all of these cases have taken the crime/law enforcement route to my knowledge. See Human Rights First, In Pursuit of Justice. This is not the same as saying that a law of war paradigm has been affirmatively rejected. In fact, the manner in which most district courts are handling the Guantanamo habeas petitions suggests a willingness to acknowledge some form of a law of war paradigm for detention purposes. However, it seems that the same subject matter and personal jurisdiction issues that are likely to plague the Military Commissions for years to come will also plague federal courts. In other words, departures from regular criminal law procedures depend on having a combatant in court charged with a violation of the laws of war that occurred during some kind of armed conflict. The smarter decision for prosecutors, and the more likely… Read more »
A couple of closing thoughts on this post.
Howard is probably correct regarding many things. I address only one. As I indicated in the earlier comment, to the extent that constitutional requirements are reflected in procedures promulgated by statute or pursuant to statutory authority, they will bind the federal courts – but only by virtue of their promulgated (not constitutional) status. So, to use Howard’s example, the prescribed Federal Rules of Evidence regarding hearsay will apply, but refinements to it made by Sixth Amendment Confrontation Clause case law should not.
Regarding the existence of an armed conflict, an issue mentioned by many, I believe the AUMF may definitively establish its existence for the courts. In other words, regardless of whether the conflicts with al Qaeda or Taliban constitute “armed conflict” under conventional or customary international law, the AUMF reflects the understanding of the political branches that one exists. Under a simple application of the later-in-time rule (and other relevant Supreme Court precedent), the joint actions of the political branches would appear to bind the courts on this issue.
Thanks to all for the stimulating discussion. I apologize for not having more time to engage in it.
You’re probably right about the role of the AUMF vis-a-vis the courts, but in addition to the consequences I cited above, we might consider the myriad Hydra-headed problems and disturbing implications that result from this choice as spelled out in the writings of Rosa Eherenreich Brooks and Mary Ellen O’Connell (among others), e.g.: war everywhere and without end, and complete disregard for the relevant rules of international law (Realism with a vengeance).
The thing about war is that everyone always calls the enemy nasty names like “criminal” and “terrorist”. The enemy never fights according to “our rules” and is, therefore, some inherently evil group who should not be given the dignity of being treated as soldiers. Then the war ends, we hang a few war criminals, and everyone else is forgiven. During WWII some Japanese officials decided that US air crews shot down were common criminals because flying at 30,000 feet and dropping bombs on cities lacked a proper “warrior’s spirit”. After the war, we tried them as war criminals and hung them. During Korea the Chinese and during Vietnam the NVA claimed that captured US soldiers were criminals who had to confess their crimes against humanity. Both the Right and the Left act as though Americans are God’s chosen people and that the US Constitution is the perfect document superior to all international law. I reject the patronizing attitude that enemy soldiers should be thankful that we give them all the rights we lavish on Ted Bundy or Charlie Manson and accept that they are murdering pond scum deserving of the protections we grant to child molesters. The problem here is… Read more »
I’m not sure I agree that the existence of the AUMF obviates the need to engage the IHL analysis on its terms. First, the AUMF was passed after many of the substantive crimes that have been alleged took place, raising real ex post facto issues. Second, courts have indeed taken a deferential view in granting the political branches license to declare that an armed conflict exists, but courts have been less deferential in allowing the political branches to define its contours. As a result, the Obama administration has been having a hard time showing, in habeas proceedings, that individuals who are supposedly “combatants” have indeed contributed to some armed conflict. Similarly, Hamdan revealed that the Supreme Court is ready to challenge notions that “conspiracy” could be considered a war crime. In short, courts might have ceded the existence of an armed conflict, but who participates in it (personal jurisdiction) and what constitutes participation (subject matter jurisdiction) are very much live issues for courts.
Raha,
Thanks for that perceptive comment.