Let us start with an overview of the legal framework for dealing with charges against persons in the context of war or armed hostilities.

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1 THE DISPOSITION OF AFGHAN WAR AND AL QAEDA PRISONERS Published in the Fall 2002 edition of the Tulane Lawyer By Edward F. Sherman, Professor of Law, Tulane Law School Throughout American history, wars and armed conflict have been accompanied by a clash between national security and individual rights. Confronted by what they considered to be grave threats to the nation, our presidents and military commanders have sometimes side-stepped the normal processes of law in the interests of defending the country and furthering the war effort. Our courts have struck down some of those governmental actions, although sometimes only after the hostilities were over. The fallout from 9/11 is the latest manifestation of this recurring historical phenomenon. The swift success of the military action in Afghanistan led to the capture of thousands of Taliban or Al Qaeda fighters on the battlefield. The war on terrorism at home and abroad also has resulted in the arrest of a large number of persons suspected of committing or aiding terrorist acts. The problem is how to dispose of the charges against these prisoners and against the many more suspects who are likely to be arrested in the future. Just how the United States resolves this problem has important implications for our ability to respond to the new global terrorism and, at the same time, to preserve our traditional values. The administration early on decided to incarcerate the Afghan War prisoners outside the country at Guantanamo Bay, arguably lessening the reach and scope of federal court writs, and to prosecute them before military commissions. However, prosecutions have not been undertaken, and the administration has adopted the further position that the detainees are enemy combatants who can be held indefinitely until the end of hostilities without the necessity of trials. This policy might be seen as furthering a number of valid objectives: an emphasis on obtaining information from prisoners without having to disclose sensitive intelligence at a trial, preventing them from returning to society where they could engage in combatant or terrorist acts, and, by the indefinite nature of their internment, deterring others from following in their footsteps. The question is whether the detainees are thereby deprived of basic due process rights under both the U.S. laws and constitution and our obligations under international treaties and conventions. Let us start with an overview of the legal framework for dealing with charges against persons in the context of war or armed hostilities. Courts-Martial The detainees might have been tried by an American court-martial. Courts-martial, which are governed by the Uniform Code of Military Justice (UCMJ), now provide most of the due process rights available in our civilian courts. In fact, Paul W. Brosman, the dean of Tulane Law School, was on the first civilian Court of Military Appeals created by the UCMJ in 1951 and played a role in the civilianizing of military justice procedures.

2 Courts-martial have jurisdiction over active duty and retired service personnel and civilians accompanying the military in time of war, as well as enemy prisoners while in custody. Although prisoners of war cannot be tried for the ordinary acts of warfare, the administration s position is that the Al Qaeda (and perhaps many of the Taliban) fighters in Afghanistan do not meet the criteria for POW status (such as carrying arms openly and fighting under a fixed sign recognizable at a distance). Courts-martial can also try violations of the laws of war, which derive from the practice of nations and international treaties like the Hague and Geneva Conventions that prohibit a variety of acts of perfidy or ruse other than mere participation as a combatant. Thus Afghan war prisoners might be tried in courts-martial for violations of the laws of war, including acts of terrorism, as well as for ordinary criminal law offenses like murder and assault if they are not entitled to POW status. A court-martial would provide them most of the basic due process rights guaranteed by our constitution, although the court members would be military officers selected by a military commander. The administration, however, rejected the use of courts-martial, opting instead for military commissions. Similarly, the administration rejected the use of an ad hoc international tribunal, like the Nuremberg (1945), Yugoslavian (1993), and Rwandan (1994) tribunals, which would have applied international standards of due process but have often dragged on for lengthy periods of time. Military Commissions Military commissions composed of military officers grew up in the 19th century especially to try civilians who were not subject to court-martial jurisdiction. One of the earliest such attempts was a trial in New Orleans during the War of Gen. Andrew Jackson ordered the trial of Louis Louaillier, a member of the Louisiana legislature who wrote an editorial criticizing the continuation of martial law after the Battle of New Orleans was over. Jackson acted in typical high-handed fashion, without justification for supplanting the civilian courts, but viewed this as necessary to maintain order. Louaillier denied the court s jurisdiction and was acquitted, although he was still held in custody until the war ended shortly thereafter. Military commissions were used in the Mexican War to try civilians for crimes committed in the theatre of war that would have been tried in civilian courts in peacetime. They also prosecuted violations of the laws of war. They were tribunals of necessity in the sense that the civilian courts were either not functioning or lacked the will or expertise to prosecute violations of the laws of war. Military commissions were used extensively in the Civil War to try both soldiers and civilians for a range of offenses including violations of the laws of war, non-military crimes normally tried in civilian courts, and violations of President Abraham Lincoln s broad martial law proclamations. Lamdin P. Milligan, a southern sympathizer in Indiana, was convicted by a military commission for communicating with the enemy and inciting rebellion, and was sentenced to hang. However, his habeas corpus challenge to the commission s jurisdiction was upheld by the Supreme Court after the war was over (Ex

3 parte Milligan) on the ground that the president cannot authorize the military trial of a civilian when the civilian courts are available. Military jurisdiction over violations of the laws of war was often asserted. For example, Confederate Maj. Henry Wirz, the commandant of the Andersonville prisonerof-war camp, was tried before a military commission for mistreatment of prisoners, and was executed, the only soldier on either side to be executed for war crimes. Early in World War II, a 1942 Supreme Court decision (Ex parte Quirin) upheld a secret three-week trial of eight German saboteurs before a military commission created by President Franklin Roosevelt. They were captured shortly after landing on the East Coast, convicted of sabotage and spying, and sentenced to death. Considering a writ of habeas corpus on an expedited basis, the Supreme Court upheld the commission s jurisdiction, and six of the saboteurs were executed. Although one was an American citizen and the civilian courts were open, the Court said that, by fighting behind the lines out of uniform in violation of the laws of war, they were unlawful combatants who were subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. Like the internment of Japanese on the West Coast, which was also upheld by the Supreme Court at the time, the hasty and secret military trial of the German saboteurs has been criticized as an overreaction in the darkest days of the war. However, since one of the saboteurs was an American citizen, Quirin provides a possible exception to the Milligan rule that citizens cannot be tried by a military court while the civilian courts are available. It has been cited by the administration for detaining and subjecting to a military trial Afghan war prisoners, including some American citizens, as enemy combatants (which the administration equates with unlawful combatants ) for violations of the laws of war. The use of military commissions after World War II to try Japanese and German commanders and combatants for violations of the laws of war was also upheld by the Supreme Court (In re Yamashita). When 21 German soldiers were convicted by a military commission for continuing to fight with the Japanese in China after Germany surrendered (Johnson v. Eisentrager), the Supreme Court even denied their right to the writ of habeas corpus on the grounds that they were nonresident enemy aliens whose offenses, trials, and confinement occurred outside the United States or its territories. This case seems to have played a role in the Bush administration s decision to incarcerate the Afghan war fighters outside the United States at Guantanamo Bay. Military Commissions for Afghan War Prisoners A military commission is the creation of the president as commander in chief, and its structure and procedures are entirely determined by presidential directive. Two months after 9/11, President George Bush issued a directive establishing military commissions to prosecute non-u.s. citizens arrested in the United States or abroad in relation to terrorist acts. He indicated that death penalties would be sought and that conviction and sentence would require only a two-thirds vote of the commission (while civilian courts and courts-

4 martial require a unanimous verdict). He suggested a lesser guilty standard than beyond a reasonable doubt, less restrictive rules of evidence than in civilian courts and courtsmartial, closed hearings, and limits on counsel of choice. Review beyond the commander-in-chief was precluded, apparently including access to a writ of habeas corpus in the civilian courts. This directive set off a debate concerning the constitutionality of trials by military commissions and of the proposed procedures. An American Bar Association task force made up of lawyers and judges with military experience issued a report, ultimately approved by the ABA House of Delegates, that reviewed the constitutional precedents for military commissions and sided with the president. It found the 9/11 attacks were arguably violations of the laws of war that would justify trials by military commissions in some cases. However, they urged that commissions only be used in narrow circumstances in which compelling security interests justify their use and only for violations of the laws of war by persons not lawfully present in the United States. It called for procedures consistent with courts-martial and the International Covenant on Civil and Political Rights. Department of Defense regulations to govern military commissions issued on March 31, 2002 expanded due process rights from the president s first directive. They included requirements for a presumption of innocence, proof beyond a reasonable doubt, unanimous verdicts in capital cases, and representation by counsel of choice. However, it did not provide for appeals to a civilian court, allowed admission of evidence of whatever a reasonable person would find probative, and failed to bar indefinite pretrial detention. U.S. citizens would be exempt from the jurisdiction of the commissions, but that exemption was not extended (as the ABA proposed) to lawful resident aliens, persons lawfully in the country, persons apprehended or to be tried in the United States who were not charged with violations of the laws of war, and persons only charged with violations of federal, state or territorial laws. As reflected in the Milligan and Quirin decisions, American citizens have constitutional rights not to be tried by military commissions in certain situations and to seek a writ of habeas corpus to challenge unlawful detention or jurisdiction. Probably for this reason, the administration decided to try John Walker Lindh, the American captured with the Taliban, in a federal court in Virginia and Zacarias Moussaoui, charged with conspiring with the 9/11 attackers, in a federal court in New York. When it was learned that Yaser Esam Hamdi, who was captured fighting in Afghanistan, was born in Louisiana, he was transferred from Guantanamo Bay to a Navy brig in Norfolk, Va. Jose Padilla, an American citizen who the government claims plotted to construct a dirty bomb, also is being held in a Navy brig in the United States. These two American citizens, who have broader rights to seek a writ of habeas corpus than do the Guantanamo Bay detainees, have raised legal challenges to their indefinite detention as enemy combatants.

5 Indefinite Detention of Enemy Combatants As time passed without Guantanamo Bay detainees being tried before military commissions, charges arose that the U.S. government was content to hold them indefinitely without the necessity of proving their guilt in a trial or providing evidence that they were not entitled to POW status. Thus the focus shifted from the rights available in a trial by military commission to whether the government could hold them until the end of hostilities. Hamdi and Padilla challenged their detention, in writs of habeas corpus, under both constitutional and international law. The Fifth Amendment, they argued, forbids detention indefinitely without being charged with a crime. And under the Geneva Convention, they pointed out, persons captured in an armed conflict are entitled to determination of POW status by a competent tribunal. The Inter-American Commission on Human Rights supported this position in a statement that international humanitarian law as well as international human rights law was contrary to holding the detainees at the unfettered discretion of the United States government and that the United States should take the measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal. If accorded POW status, prisoners can be held without formal charges for the duration of the hostilities, but cannot be confined, as opposed to detained, which has generally meant communal living conditions, rather than the separation of the wire cages and cells used at Guantanamo Bay (remember the POW barracks of Hogan s Heroes ). POW s may not be subjected to coercive interrogation or disadvantageous treatment for refusal to respond to questioning, which probably accounts for the administration s reluctance to accord POW status to Afghan War and terrorist detainees. The detainees have been accorded the humane treatment required by the Geneva Convention, including scrupulous respect for their freedom to practice their religious rites, and there is no reason to believe that physical abuse has been used in interrogations. However, the psychological pressures of separation from others, frequent interrogation, and indefinite detention seem calculated to break down their resistance to giving information. The federal judge in Hamdi s habeas case ordered that the government explain why it was holding Hamdi as an enemy combatant. A defense department special adviser submitted a two-page declaration (based on a classified document that the government would not show to Hamdi) stating that Hamdi had traveled to Afghanistan in summer 2001, received weapons training, and remained with a Taliban unit after the 9/11 attacks. The court found the government s return insufficient to warrant dismissal of the habeas petition and ordered it to produce more evidence, including the identity of the executive officials responsible for the enemy combatant designation, and to explain why he must be held incommunicado. That order is on appeal to the U.S. Court of Appeals for the 4th Circuit. Cases brought on behalf of non-americans held at Guantanamo Bay also have been unsuccessful. A federal judge dismissed claims by two Britons, an Australian, and several Kuwaiti on the grounds that Guantanamo is no part of the United States and the

6 court lacked jurisdiction over foreign detainees there. In November 2002, a British court of appeal declined to compel its foreign office to challenge the detention of a British citizen saying that would be an inappropriate interference with foreign policy. However, it stated that his indefinite detention appeared to violate both international law and the principles of habeas corpus. Administration s justification In a letter responding to criticisms of the government s detention policies by the ABA, William J. Haynes II, the General Counsel of the Department of Defense, cited the president s authority as commander-in-chief to detain enemy combatants until hostilities are over. He stated that this authority is buttressed by the Sept. 18, 2001, joint resolution of Congress authorizing the president to use all necessary and appropriate force against those he determines planned or committed the terrorist acts. The general counsel also denied that detention was indefinite, saying that there may be uncertainty about when hostilities cease in the novel conflict with Al Qaeda, but in prior wars combatants were detained for years and we have not yet reached the point [of disquiet about indefinite detention]. As long as hostilities continue and the detainees retain intelligence value or present a threat, he said, no law requires that the detainees be released, and it would be imprudent to do so. The Hamdi and Padilla cases and possibly other legal challenges will work their way through the courts, perhaps finally to receive Supreme Court review of certain issues. Meanwhile the administration began to release some prisoners to their countries of origin. Secretary of Defense Donald Rumsfeld explained: If you don t want them for intelligence, and you don t want them for law enforcement, you don t need to keep them off the street, then let s be rid of them. The process by which political and legal pressures are brought to bear on an administration s policies that favor national security concerns over individual rights is familiar in American history. The issues raised by the detention of Afghan War and Al Qaeda prisoners are reminiscent of other wars, other hostilities, and other tangled legal responses. We shall have to see if legal and political precedents resulting from the post 9-11 terrorist threat will provide clearer guidance for the disposition of irregular combatants and terrorists in the future.