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.