46 The Undergraduate Law Review at New York University Vol IV: Issue I

American Military Commisions A Long History of Injustice

Ari Gershengorn New York University

I. Introduction The history of American military tribunals is not a pleasant one. Since their dawn in the Revolutionary War, military tribunals have delivered swift and often unfair substitutes for justice. Some contemporary legal commentators rely on this lengthy historical precedent to justify the continued usage of military tribunals. Rather than upholding their existence, however, the unjust history of these commissions demonstrates why their usage should be significantly curtailed.

II. What is a Military Tribunal? Under normal circumstances in American law, those accused of committing crimes go before a federal or state judge. The accused are broadly protected by the Fourth, Fifth, and Sixth Amendments, and are allowed, among other things, legal representation, trial by jury, and a public trial. None of these are true for military tribunals. Military tribunals decide the fates of a specific class of people: non–prisoner of war enemy belligerents. In other words, any foreign combatant not captured on the battlefield and comporting themself in a manner consistent with the laws of war can be tried by a tribunal. Soldiers on a battlefield are not tried and executed, however enemy belligerents, such as spies, terrorists, and assassins, can be. Military tribunals have been used in the since before the drafting of the Constitution and bear only the slightest resemblance to the courts provided in the Constitution. Unlike normal criminal courts, any privileges provided to the accused are just that: privileges. Congress and the President (absent congressional guidance) can set rules that govern the procedure and protections in the trial, and the results are often quick and harsh. While seemingly legally questionable, the usage of military tribunals is rooted in the founding documents of America. The Constitution gives Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”1 It is generally understood that offenses against the Law of Nations include a variety of war crimes, ranging from piracy to extra-judicial killings to genocide.2 There is much debate about whether other crimes, specifically spying and conspiracy, constitute violations of the Lawof Nations.

III. Military Tribunals Before WWII

1 U.S. Const. art. I, §8, cl. 10. 2 Military Commissions Act of 2006, Pub. L. 109-366, § 950v 120 Stat. 2600 (2006). Fall 2020 American Military Commisions 47 A. Trial of John Andre One of the first usages of military tribunals comes from the pre-Constitution trial of Major John Andre. A British officer with ties to the famous traitor Benedict Arnold, Andre arrived in American territory on September 22, 1780.3 He was found and arrested within a day and brought before a military tribunal convened by General George Washington. The question before the panel was whether Major Andre was a simple soldier, and thus should be treated as a prisoner of war, or whether he acted in violation of the Law of Nations, and thus should be treated as an unlawful enemy combatant. The tribunal found Andre guilty of infiltrating America in a “private and secret manner,” working under a “feigned name and disguised habit,” and being in possession of “several papers which contained intelligence for the enemy.”4 In light of the evidence, the tribunal unanimously recommended death, a decision that General Washington approved. Andre was executed on October 2, 1780, less than two weeks after his arrival to America. Andre was not afforded many protections. There is no official record of the trial, and the unofficial account published by Congress omits any mention of a defense by the accused, although Winthrop Sargent, Andre’s biographer, argues that the Major almost certainly did.5 There was little testimony, and Andre was likely not afforded an opportunity to present witnesses.6 The lack of rights afforded to Andre would establish a recurring precedent in tribunals to come.

B. Andrew Jackson in New Orleans In the country’s early days, military tribunals were common when martial law had been declared, frequently to ill effect. An early high-profile usage was by General Andrew Jackson in New Orleans after the War of 1812. Jackson declared martial law in 1814, ordering his soldiers to “execute the martial law in all cases which may come within his province.”7 Jackson used this proclamation to try crimes before military tribunals and enforce a strict curfew.8 Unfortunately for the citizens of New Orleans, Jackson refused to rescind his proclamation even after the British had left and were negotiating terms of peace. Jackson used this power to dubiously arrest and order the military trial of Louis Louaillier, a newspaper publisher critical of the general.9 Louaillier petitioned for a civilian trial, and Judge Dominick Hall sided with the publisher. In a violation of civil liberties, Jackson expelled the judge from New Orleans. Although Judge Hall eventually returned to New Orleans —

3 Louis Fisher, Military Tribunals and Presidential Power (Lawrence: Kansas University Press, 2005), at 11. 4 Wade Millis, “A Spy Under the Common Law of War,” 11 A.B.A.J. No. 3 (1925), at 186. 5 Winthrop Sargent, The Life and Career of Major John Andre (Boston: Ticknor and Fields, 1861), at 396-397. 6 Id. at 396 7 Harold Moser, Papers of Andrew Jackson (1991), at 205. In Fisher, supra note 3. 8 Fisher, supra note 3, at 25. 9 Ibid. 48 The Undergraduate Law Review at New York University Vol IV: Issue I and issued General Jackson a $1,000 fine10 — Jackson’s ability to suppress personal freedoms with military justice is alarming.

C. Jackson in the Seminole War General Jackson’s actions in the Seminole War were equally disturbing. Tasked with quelling a Creek Indian uprising in Florida, Jackson declared martial law in 1818 before arresting and charging two British officers, Alexander Arbuthnot and Robert Chrystie Ambrister, on charges of spying and incitement.11 He arraigned both men before tribunals. Arbuthnot’s trial was speedy, and the result was predictable: by a two-thirds majority, the tribunal sentenced Arbuthnot to death by hanging.12 Ambrister’s trial was far more complex. Although he was found guilty, he was sentenced to 50 lashes and 12 months of hard labor.13 Jackson, unhappy with the sentence, had Ambrister shot.14 Jackson’s decision to execute the British officer was highly controversial and led to widespread condemnation. Despite verbal reprimands from Congress regarding this decision, Jackson escaped unscathed and unpunished.15

D. Lincoln’s Suspension of Habeas Corpus The was a watershed for military justice. Almost immediately after the start of the Civil War, President suspended habeas corpus from D.C. to Pennsylvania, arguing that the president was to “preserve, protect and defend the Constitution.”16 This argument was broad, however, and could be used to justify a wide array of unconstitutional behavior. Additionally, the Constitution is clear that only the legislative branch can suspend habeas corpus “in Cases of Rebellion or Invasion.”17 Lincoln realized the inadequacy of his oath-of- office-based argument and appealed to Congress for legitimacy. The question of whether or not the president could suspend habeas corpus was never fully answered. In 1863, the Senate passed the Habeas Corpus Suspension Act, which declared that “During the present rebellion, the President of the United States, whenever, in his judgement, the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States or any part thereof.”18 On September 15, 1863, using the power vested in him by the HCSA, Lincoln declared that “the privilege of the writ of habeas corpus is suspended throughout the United

10 Id. at 26-27. 11 Id. at 28. 12 American State Papers: Military Affairs (1832) at 721, 731. 13 Fisher, supra note 3, at 28. 14 Ibid. 15 Id. at 31. The Senate, for example, was critical of Jackson for lowering Ambrister and Arbuthnot, two white men, “Below the savages with whom they were connected.” 16 Fisher, supra note 3, at 41-43. 17 U.S. Const. art. I, §9, cl. 2. 18 An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, §1, 12 Stat. 755 (1863). Fall 2020 American Military Commisions 49 States.”19

E. In 1864, Lambdin Milligan, a United States citizen and longtime resident of Indiana, was arrested and tried before a military tribunal for “conspiracy… affording aid and comfort to rebels… inciting insurrection… disloyal practices and violations of the laws of war.”20 Milligan was convicted. He appealed all the way to the Supreme Court, arguing that the military commission did not have jurisdiction to hear his case, as civilian courts were still in operation and he was a United States citizen. In his case, Ex parte Milligan, the court faced two questions. First, did the Habeas Corpus Suspension Act of 1863 (HBSA) limit the ability of a military commission to try Milligan where civilian courts were in operation? Second and more importantly, the court had to decide whether tribunals could operate at all where civilian courts were in operation, regardless of what the HBSA said. On this statutory question, the court unanimously ruled in Milligan’s favor, as the HBSA stated that prisoners are entitled to trial in a federal or district court if they, like Milligan, are a citizen of a state where “The administration of laws has continued unimpaired.21 The more important question, as to whether or not tribunals could operate at all if civilian courts were in operation, split the court five to four in favor of Milligan. Justice David Davis, the majority opinion’s author, invoked the Fourth, Fifth and Sixth Amendments at length in his opinion. He argued that “One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.”22 Davis went on to argue that “Another guarantee of freedom was broken when Milligan was denied a trial by jury,” in violation of his Sixth Amendment rights.23 Davis warned of a despotic and tyrannical executive branch that would amass terrifying power during wartime. If the president is able to fully substitute in military commissions, any general can “on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.” 24 The Court here makes an important stand for civil liberties. Had they ruled against Milligan, the president, would be able to supplant civil justice with military justice during any war on American soil, whether it related specifically to the war or not.

F. Botched Trial of the Lincoln Conspirators On April 15, 1865, Abraham Lincoln was killed by John Wilkes Booth

19 Proclamation No. 104, (1863). 20 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 50 The Undergraduate Law Review at New York University Vol IV: Issue I at Ford’s Theater in Washington, D.C. Booth and his associates were subject to widespread public ire, and the nation wanted heads to roll, whether the proceedings were just or not. President ordered a tribunal to try eight conspirators, even though civil courts were in operation.25 The primary reason why Johnson convened military tribunals was likely that he feared the convictions he sought could not be obtained in civil court. In correspondence on the trials, Judge Advocate General Joseph Holt referred to the safeguards and rights provided by the civil court system as “technicalities” that would cause “inevitable embarrassments.”26 Johnson likely had reason to fear. Only one juror was needed to secure an innocent verdict, and with many men in D.C. still at war, the available pool held a disproportionate number of Confederate sympathizers.27 Secondly, Holt and the prosecution wanted a show trial for the conspirators, and thus needed more latitude regarding admissible evidence. Holt insisted that the evidence they present make the Confederate scheme be “published to the community and to the world,”28 and therefore needed “a latitude that no civil court would allow.”29 Both of these reasons unfairly favored the prosecution and stemmed from a nation and a military justice system hungry for vengeance. President Johnson asked attorney general James Speed to decide whether or not the creation of the tribunals was legal, and the decision that Speed provided was flawed in several ways. A common theme in miscarried military justice is sacrificing caution for expediency, and Speed’s opinion was no different. Although he promised to write a full opinion later, Speed produced an upsettingly short decision on April 28, which reads, in its entirety: “Sir: I am of the opinion that the persons charged with the murder of the President of the United States can be rightfully tried by military court. I am, sir, very respectfully, your obedient servant, JAMES SPEED.”30 For Johnson, this opinion was enough to declare, conduct and conclude the tribunal for the eight defendants. The trial itself barely maintained an illusion of impartiality. Elements harmful to the accused included but are not limited to: charges that were of “extraordinary breadth and vagueness,” limited access to legal counsel, various conflicts of interest, admissibility of evidence that included wild conspiracies about Canadian plots to kill the president (the principal witnesses

25 Fisher, supra note 3, at 66. 26 Martin S. Lederman, “The Law of the Lincoln Assassination,” 118 Colum. L. Rev. No. 2 (2018), at 399. 27 Ibid. 28 United States War Department, “Letter from J. Holt, Judge Advocate Gen., to E.M. Stanton, Sec’y of War (Nov. 13, 1865),” The War of the Rebellion: A Compilation of the Official Record of the Union and Confederate Armies (Washington: Govt. Print. Off., 1880-1901), at 493. 29 Lederman, supra note 26, at 398. 30 11 Op. Att’y Gen. 215, 215 (1865). Fall 2020 American Military Commisions 51 testifying about the Canadian plot were revealed to be perjurers), and lack of access to any kind of review process.31 The trial ended in eight out of eight convictions, with four sentenced to death and four sentenced to life in prison. If Johnson were keen to secure convictions, he was wise (although legally objectionable) to avoid civil court, where many of the convicted would likely have escaped punishment. While three men were clearly connected to Booth and the plot, at least four of the convicts, Samuel Arnold, Michael O’Laughlen, Edman Spangler and Mary Surrat were only tangentially involved.32 Despite a dearth of evidence, these individuals were either hung or served long prison sentences.33 Speed’s full opinion was not enough to save the legality of the tribunals. It was released too late to make a difference, after the conclusion of the trials, appearing to be their after-the-fact justification. The contents of the opinion were no less troubling, as he poorly addressed the question of whether this trial could be conducted in a civil court. He argued that while murder was triable by civil court, targeting an enemy leader with lethal force is against the laws of war. Speed errs in this conclusion, however, as targeting enemy leaders with lethal force, in and of itself, is not a war crime.34 Even if killing opposition leaders were a war crime, Speed’s opinion fails to adequately explain why Johnson could ignore the Milligan decision and allow military tribunals to operate while civil courts were open. He makes the strained argument that courts cannot try military offenders because courts have no right to “interfere with and prevent a battle.”35 Speed went on to argue that “A battle may be lawfully fought in the very view and presence of a court; so a spy, or bandit or other offender against the law of war, may be tried, and tried lawfully, when and where the civil courts are open and transacting the usual business.”36 Arguing that the trial of these men constituted a military battle was likely an post hoc explanation justifying the unjust execution of several enemies. All in all, the executions of the Lincoln conspirators were legally abhorrent, and should serve as an example of what not to do in a military tribunal setting. Unfortunately, many of the same mistakes would be repeated decades later in World War II.

IV. Military Tribunals in WWII In 1942, Nazi spies landed in New York City with the aim of harming the U.S. war effort by using explosives on key infrastructure.37 Shortly after landing, one of the men, George John Dasch, panicked and turned himself into the FBI, who

31 Lederman, supra note 26, at 338-341. 32 Three were clearly involved, four were clearly not and Samuel Mudd was somewhere in the middle. Booth and his associate, David Herold, hid at Mudd’s farm shortly after killing Lincoln. It is unclear to what extent Mudd was involved or whether he knew of Booth’s actions. Mudd was sentenced to a life of hard labor by a separate tribunal in 1868, although President Johnson granted him a pardon in 1869. 33 Lederman, supra note 26, at 332-333. 34 Lederman, supra note 26, at 423. 35 Speed, supra note 30. 36 Ibid. 37 Fisher, supra note 3, at 91. lii The Undergraduate Law Review at New York University Vol IV: Issue I then rounded up the other seven men. In an irregular move, these men were tried in a military tribunal rather than a civilian court without adequate legal justification. There were two main reasons for this, and neither present the government in a particularly positive light. First, the FBI didn’t want the knowledge of the true nature of the infiltration of the Nazis to be known. There was a public perception the FBI had, through brilliant police work, snuffed out the nefarious plot to harm American interests. The New York Times praised the FBI, writing that the saboteurs were being trailed by the FBI “from the moment they set foot on United States soil.”38 While the FBI was instrumental in bringing down these Nazi invaders, the truth of their capture is much more complex. The FBI lost track of the men once they entered the country and were saved due to the sheer luck of Dasch’s panic.39 The FBI enjoyed the positive press it was receiving and suppressed the Nazi’s testimony for the sake of maintaining their own reputation. Historian Louis Fisher writes that the FBI — specifically Director J. Edgar Hoover — “did not want it known that one had turned himself in and fingered the others. Neither did President [Franklin D.] Roosevelt and other top officials.”40 The FBI offered Dasch a civil trial, under the condition that Dasch not divulge details of the investigation, which Dasch declined. With the risk of Dasch divulging the secret of his capture in court, the administration began to favor a military tribunal. The second reason for the government’s decision to enact military tribunals hinged on the possibility that in civil court, the saboteurs might not have been found guilty.41 The Nazis, while clearly harboring malice, had not obviously committed real crimes. A charge of sabotage would not have held up in court, as the saboteurs did no actual damage. In his 1962 memoirs, then-Attorney General wrote that, “If a man buys a pistol, intending murder, that is not an attempt at murder.”42 Even if the men had been convicted, unlikely as it was, the maximum punishment for sabotage was 30 years in prison, but death was not a possible punishment. Conspiracy, a much easier charge to bring than sabotage, carried only a three-year maximum.43 Even tacking on immigration related crimes would only extend the jail time by a year or two.44 The possibility of a light sentence was unacceptable to President Franklin Roosevelt, who very much advocated for the death penalty. In a memo to his attorney general, Roosevelt appeared to flagrantly disregard the principles of due process. Roosevelt urged a guilty verdict, although he admitted that he had not “read

38 Will Lissner, “Invaders Confess,” The New York Times (June 1942). 39 Fisher, supra note 3, at 92. 40 Id. at 95. 41 Barack Obama would face a similar problem in future, when he attempted to bring Guantanamo Bay detainees to the United States for civil trials. Many people feared that if given proper justice, convictions could not be secured. The detainees were never brought to the United States. 42 Francis Biddle, In Brief Authority (Garden City: Doubleday, 1962), at 328. 43 Fisher, supra note 3, at 95. 44 Id. at 96. Fall 2020 American Military Commisions liii all the statutes which apply.”45 In his memoirs, Biddle took a clear message from that introduction, imploring his readers to “notice the Rooseveltian touch,” where the President seemed to say “I know all about law, and anyway I don’t have to read the statutes, this is war.”46 Roosevelt continued to urge a guilty verdict, saying “surely [the saboteurs] are as guilty as it is possible to be, and it seems to me that the death penalty is almost obligatory.”47 The letter concluded with the following: “This is an absolute parallel of the case of Major Andre in the Revolution and of Nathan Hale. Both of them were hanged. Here again it is my inclination that they be tried by court martial as were Andre and Hale. Without splitting hairs, I can see no difference.”48 The nation’s top legal officer drew the frightening conclusion that Roosevelt was saying “Don’t split hairs, Mr. Attorney General.”49 On June 2, 1942, Roosevelt issued Proclamation 2561, establishing a Military Tribunal to try the eight saboteurs.50 Proclamation 2561 declared that the defendants were to be tried in accordance with the “Laws of War,” as opposed to the Articles of War. While the Articles of War were tried with strict congressional limits, the Laws of War were not governed by statute, and therefore defendants were entitled to whatever rights the government decided to provide them.51 Obviously, an executive with a predetermined outcome in mind that was allowed to set the boundaries of a trial led to an unfair trial. The tribunal lowered the standard for evidence admissibility, required fewer votes than usual to secure a death sentence, closed the proceedings to the public and vested final determination in the president.52 Proclamation 2561 also explicitly denied the defendants the right to appeal, saying “Such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States.”53 If allowed to proceed, there must have been little doubt as to what the verdict and punishment would be. Not content with little more than summary execution, the Nazi saboteurs challenged the legality of the proceedings. The defendants successfully brought their case to the Supreme Court after the defense council personally met with several justices.54 From start to finish, the case was highly irregular. The briefs for the two sides were submitted the same day as oral argument, leaving the justices little time to

45 Franklin D. Roosevelt, Memorandum for the Attorney General (June 30, 1942). 46 Biddle, supra note 42, at 330. 47 Roosevelt, supra note 45. 48 Ibid. 49 Biddle, supra note 42, at 330. 50 Fisher, supra note 3, at 98. 51 Ibid. Bush used the same strategy, allowing the Guantanamo Bay tribunals to operate without Congressional oversight for nearly four years. He would also copy the language of Proclamation 2561 almost exactly when establishing his own system of military tribunals. 52 Fisher, supra note 3, at 100-101. 53 Franklin D. Roosevelt, Proclamation No. 2561 — Denying Certain Enemies Access to the courts (1942). 54 Fisher, supra note 3, at 107. liv The Undergraduate Law Review at New York University Vol IV: Issue I prepare. 55 Argument stretched on for nine hours over two days.56 The actions of the justices, too, were improper and controversial. Justice Stone’s son-in-law served on the defense team, while Justice Frankfurter and Justice Byrnes also had tangential and questionable ties to the case. 57 There were several key issues debated. First, there was the issue of the specific charges levied against the saboteurs. The defense argued that their clients were innocent of charges II and III (dealing with spying and sabotage) but did not challenge the legality of the accusations. The defense took issue with charges I and IV, however. Charge I accused the saboteurs of acting “contrary to the law of war.”58 The prosecutors argued that this was a charge too broad to have any real meaning, analogous to accusing someone of committing “a common law crime.”59 The defense also took issue with Charge IV: conspiracy. Conspiracy, they argued, is not generally accepted as a violation of the laws of war and is not triable under a military commission.60

A. Decision and Controversy So as not to further delay the procedures of the Military tribunal, the Court, in an unusual and controversial move, issued a unanimous Per curiam decision without an opinion the day after oral argument. Speaking to reporters, Justice Stone upheld the authority of the tribunal, giving the proceedings the legal authority they needed to complete their work.61 The outcome of the trial was swift and unsurprising. On August 1, the tribunal found all eight men guilty and deserving execution, although Roosevelt chose prison sentences for Ernest Peter Burger and Dasch, the FBI informant.62 On August 8, the six men condemned to die were electrocuted.63 They had infiltrated America on June 12 and were caught, tried, and executed all in under two months. The Court was now in an awkward position. The rushed justice they rendered had resulted in the deaths of six men before the court was able to draft a full opinion. On September 10, a month after the execution of the Nazis, Justice Stone wrote to Justice Frankfurter that he found it “Very difficult to support the Government’s construction of the articles [of war].”64 However, it was a little late for the justices to suddenly realize the error of their previous judgements, their verdict had already been carried out. The Court was stuck between a rock and a hard place. They had to either recant their earlier ruling and admit they had wrongfully allowed 55 Ibid. 56 Ibid. 57 Fisher, supra note 3, at 108. 58 Douglas O. Linder, “Charges Against the 8 Saboteurs.” https://www.famous-trials.com/nazi- saboteurs/2440-charges-against-the-8-saboteurs. 59 Fisher, supra note 3, at 109. 60 Id. at 334. 61 Fisher, supra note 3, at 113. 62 Id. at 114. 63 Ghosts of DC, “Six Nazi Saboteurs Executed In Washington.” https://ghostsofdc. org/2012/02/09/six-nazi-saboteurs-executed-in-washington 64 Fisher, supra note 3, at 114. Fall 2020 American Military Commisions lv the execution of six men, or they could create an opinion that was contrived and difficult to defend. Chief Justice Stone chose the latter, writing that he wastoo hesitant to “leave the present court in the unenviable position of having stood by and allowed six to go to their death.”65 The opinion the court drafted was scattered, narrow and largely incomplete. One question before the court was legality of the establishment of the tribunal itself. Certainly, under the Constitution, Congress can establish military tribunals “to define and punish… Offences against the Law of Nations.”66 But to what extent does the commander-in-chief have the ability to create military tribunals unilaterally, as Roosevelt did? The Court ruled that it did not have to decide such a question, flimsily arguing that Congress had granted the president power to establish tribunals by statute. The court invoked what are known as the Articles of War, an 1806 statute that remains on the books even today, that broadly defines the powers of various bodies during wartime.67 Article 15 references the courts-martial, which is the process of judging crimes of soldiers of one’s own army and a process that Congress, in Article 12, has granted the president full control over. 68 The most straightforward and faithful interpretation of Article 15 is that Congress declares that the president has power over the court-martial, and that that power simply doesn’t detract from the president’s power, whatever that may be, over military tribunals. This is not the interpretation the court selected. The Court argued that Congress, via Article 15, granted the president the same complete power over military tribunals as he had over court-martial, which is to say. The Court wrote “The Articles also recognize the ‘military commission’ appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts martial.”69 This is a misinterpretation of the phrase “shall not be construed as depriving military commissions... of concurrent jurisdiction.” Roosevelt’s unilateral establishment of a military tribunal via Proclamation 2561 would have been legally questionable without congressional support, but the Supreme Court’s liberal interpretation asserted that Congress had given approval. The question of whether the president can unilaterally create a military tribunal without congressional approval has never been answered. As for the issue of the Milligan precedent, the court’s reasoning was vague at best. Ex parte Milligan found that the government could not establish military tribunals to try civilians in cases where civil courts were still in operation. For this opinion, the key word was “civilian.” The court found that “No stretch of interpretation”70 could lead to the providing of rights to the saboteurs. “We cannot say that congress, in preparing the Fifth and Sixth Amendments, intended to extend

65 Fisher, supra note 3, at 115. 66 U.S. Const. art. 1, §8, cl. 10. 67 This is not to be confused with the Law of Nations, a generally agreed upon code of international norms and laws. 68 United States Statutes at Large, Ninth Congress, first session (1789-1848), at 359-372. 69 Ex parte Quirin, 317 U.S. (1) 1942. 70 Fisher, supra note 3, at 110. lvi The Undergraduate Law Review at New York University Vol IV: Issue I trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission,”71 wrote the Court. Essentially, the Supreme Court distinguished between the facts of Milligan’s case and the facts of the case of the saboteurs, saying that the Nazis committed worse crimes than Milligan. This leaves an unfortunate amount of room for interpretation. The Court declined to establish any clear guidelines about the types of people Milligan does or does not apply to, simply stating that the saboteurs were “plainly within”72 the boundaries of military tribunal jurisdiction. The Court once again dodged the thorny question what constitutes an enemy belligerent and who is entitled to protection. The Court again, upon being forced to cover up for their rush job at the beginning of Quirin, avoided addressing all of the charges levied against the men. The Court found that charge I, committing or attempting to commit sabotage, was a violation of the laws of war and was prosecutable. Conspicuously absent from the court’s opinion, however, was any mention of the controversial fourth charge, conspiracy “to commit each and every one” of charges I, II and III. The court’s silence on this issue is telling. Like before, the Court had a hard time justifying the killing of six men, and therefore avoided anything that might not hold up to scrutiny. The Court’s lack of confidence in their initial decision is a distressing miscarriage of justice. In writing such a narrow piece, the court concedes that their decision is to be considered as non-precedential as possible. In fact, when the same justices faced the same question of speed versus rigor in the trial of Julius and Ethel Rosenberg, they chose to do the opposite of what they had done a decade earlier in Quirin. Justice Frankfurter wrote that when the court was asked to issue a decision and write the opinion later, “Justice Jackson opposed the suggestion also, and I [Justice Frankfurter] added that the Quirin experience was not a happy precedent.”73 Justice Douglas, in a 1962 interview, echoed Frankfurter’s sentiments, calling the Quirin process “extremely undesirable.”74 As discussed later in this piece, the government cites Quirin as an example in a landmark Guantanamo case in 2015. The circumstances surrounding the Quirin Decision will show why that argument was flawed.

V. Guantanamo Bay and 9/11

A. Bush’s Military Order The events of 9/11 shook America to its core, and swift and dramatic retaliation was needed to bring justice to the perpetrators. On November 13, 2001, President George W. Bush issued an executive order establishing military tribunals to try enemies of the United States. Bush’s order, while similar to Roosevelt’s documents, were unique in its scope. First, Bush’s order described, unsettlingly

71 Ex parte Quirin, 317 U.S. (1) 1942, at 44. 72 Id. at 46. 73 Fisher, supra note 3, at 124. 74 Ibid. Fall 2020 American Military Commisions lvii broadly, the class of people that could be tried. Whereas Roosevelt often specified individuals or well defined groups in his military orders, Bush extended the class to any non-citizen who “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.”75 The number of people who committed the broadly defined crime of having “aided and abetted” terrorist acts was staggeringly large (up to18 million people).76 This contrasts with Roosevelt’s order in Quirin, in which he authorized courts with eight specific defendants in mind.77 President Bush also denied defendants the right to habeas corpus in court, writing “the individual [accused] shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”78 The removal of habeas corpus petitioning would be the subject of controversy going forward.

B. Limits and Rights Granted During the Tribunal Bush’s unilateral creation of military tribunals was controversial, even in the post 9/11 world marked by executive overreach. Bush’s order was criticized by politicians on both sides of the aisle,79 and the American Civil Liberties Union accused the order of “stripping away basic rights.”80 The American Bar Association challenged the ability of the president to unilaterally create tribunals without congressional support, calling the idea “at least open to question.”81 The ABA report also argued that military tribunals should be limited to a much smaller number of cases, and that the habeas corpus restrictions imposed by the Bush order should be removed. In response to criticism, the Department of Defense issued new guidelines for the tribunals on March 21, 2002, in the form of “Military Commission Order No. 1.” The document laid out many of the basic rights defendants had in a tribunal. The order allowed for, but did not guarantee, the “ability to retain services of a civilian attorney.”82 Several other benefits were allowed to the defense, including the presumption of innocence, the ability to obtain documents and witnesses and

75 George W. Bush, “Military Order of November 13, 2001,” Federal Register Vol. 66 No. 222, at Section 2. 76 Fisher, supra note 3, at 169. 77 Ibid. 78 Bush, supra Note 75, at Section 5. 79 Fisher, supra note 3, at 172. 80 Timothy H. Edgar, “Memorandum to Congress on President Bush’s Order Establishing Military Tribunals,” ACLU (November 2001). 81 Fisher, supra note 3, at 178. 82 Department of Defense, “Military Commission Order No. 1,” DoD (March 2002), at 5. lviii The Undergraduate Law Review at New York University Vol IV: Issue I the right to be present at one’s own trial.83 In 2004, the Pentagon issued updated orders, mandating that defense counsel be notified when their clients were being monitored and allowed lawyers to delay trials for personal or professional reasons, among other protections.84 Even with these protections, however, the deck was still stacked against defendants. The National Association of Criminal Defense Lawyers called the act of representing clients under such restrictive circumstances “unethical,” while the ABA claimed that it would be “almost impossible to render effective assistance of counsel.”85

C. 2006 and 2009 Military Commissions Acts There were some successful challenges to the status quo in Guantanamo Bay. In 2005, Congress passed the Detainee Treatment Act, which forbade detainees in Guantanamo from seeking a writ of Habeas Corpus from a United States court, a law the Supreme Court invalidated in Hamdan v. Rumsfeld.86 More importantly, the Court ruled in Hamdan that the creation of the Bush military tribunal system violated congressional restrictions vis-à-vis habeas corpus limitations.87 The court did not rule, however, that habeas corpus restrictions were unconstitutional, just that the executive branch required congressional approval. This decision led to the creation of the 2006 Military Commissions Act (MCA), that specifically enabled the president to continue to conduct military justice.88 The 2006 MCA codified several new practices surrounding the treatment of detainees, most of them harmful to inmates. First, in response to Hamdan, the 2006 MCA established that “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding.”89 The 2006 MCA also codified a relaxation in the admissibility of evidence. While the act prohibited torture, it took an “expansive view” of the kinds of evidence permitted, even if it was obtained through coercion.90 The 2006 MCA defined combatancy in broad terms, allowing for the prosecution of anyone connected to terror. The law stated that anyone “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States” was liable for prosecution.91 The phrase “material support” was particularly alarming to civil liberties groups, as it blurred the line between combatants and civilians, allowing for retribution against people only tangentially involved in anti-American

83 Fisher, supra note 3, at 180. 84 Id. at 187. 85 Ibid. 86 Curtis A. Bradley, “The Military Commissions Act, Habeas Corpus, and the Geneva Conventions,” 101 American Journal of International Law No. 2 (April 2007), at 325. 87 Ibid. 88 Id. at 327. 89 Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006). 90 Jack M. Beard, “The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations,” American Journal of International Law No. 1 (January 2007), at 59 91 Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006), at 59. Fall 2020 American Military Commisions lix operations.92 In 2009, as part of a larger strategy of closing Guantanamo, President Obama and the newly democratic Congress passed the 2009 Military Commissions Act. While it permitted the continued use of military tribunals, it established many more safeguards. Many of the reforms in the 2009 MCA were aimed at making the military commissions resemble civil trials. Lawyers were provided for the accused, some unfavorable verdicts could be appealed, the defendant was presumed innocent until proven guilty, and the standards to admissible evidence were raised to largely bar coercive statements, among other protections.93 The law is not without its issues, as it did not afford those accused of violations of the laws of war a trial on par with the civil trials. However, it was certainly a step in the right direction.

D. Guantanamo Bay and Its Failures The abuses and torture in the Guantanamo Bay military prison are well documented. Both Congress and the Obama Administration found that banned “enhanced interrogation” had been used against detainees. The Bush Administration tried to deny the Guantanamo detainees habeas corpus rights by holding the prisoners in Cuba, in the hopes that the Supreme Court would agree to deny the right of appeal to these individuals. President Obama planned to bring Guantanamo detainees to the United States for trial as common criminals replacing the swift substitute for justice some detainees were given in their hearings before military commissions. Nearly two decades later, the prison remains open. Despite attempts from Obama, congressional leadership on both sides of the aisle have largely obstructed the transfers of detainees to the United States. This congressional effort culminated in the overwhelmingly passed 2015 National Defense Administration Act94 which prohibited the use of funds for “the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba to or within the United States.”95

VI. Case of Al-Bahlul v. United States

A. Background One particularly interesting detainee at Guantanamo Bay was Ali Hamza Ahmad Sulieman Al-Bahlul. Al-Bahlul was a close associate of Osama Bin-Laden who produced Al-Qaeda propaganda. In 2008, after a lengthy stay at Guantanamo, Al-Bahlul stood trial before a military commission and was found guilty of “conspiracy to commit war crimes, providing material support for terrorism and

92 Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006), at 60. 93 Jennifer K. Elsea, “The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues,” Congressional Research Service (August 2014). 94 Dan Roberts, “Senate passes legislation barring transfer of Guantánamo prisoners to US,” The Guardian (November 2015). 95 National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, §1001, 129 Stat. 726 (2015). lx The Undergraduate Law Review at New York University Vol IV: Issue I solicitation of others to commit war crimes.”96 Al-Bahlul and his defense team questioned the legality of the military tribunal to try conspiracy, arguing that it was not against the laws of nations, and therefore could not be tried by military tribunal. In 2015, Al-Bahlul’s case was heard by the D.C. Circuit Court of Appeals. Judge Kavanaugh wrote the majority opinion ruling in favor of the government and upholding the tribunal’s sentence.

B. Government’s Arguments Arguing in favor of upholding the tribunal sentence handed down to Al- Bahlul, the Obama Administration’s team argued that while conspiracy was not technically against the law of war, it could be tried in a military tribunal, writing in their brief that Congress may establish military commissions to try “at a minimum, (i) International law of war offenseand (ii) offenses that are not international law of war offenses but have historically been tried by U.S. Commissions.”97 The specific charge that has been historically tried, argues the government, is conspiracy. The government specifically invokes the trial of the Nazi Saboteurs andEx parte Quirin to support their claim historically. In his decision in Quirin, Justice Stone argued that spying, the offense the Nazis stood accused of, was not a violation of the law of war, but had been tried as one since the colonial era. Therefore, reasoned Stone, the founders must have intended spying to be an offense triable by commission.98 The precedent Stone sets in his opinion supports the government’s claims. The government argued that conspiracy, like spying, had always been tried, and therefore always could be. The government used two main precedents to prove their contention that conspiracy had always been prosecutable, citing “The trials of the Lincoln conspirators and the Nazi saboteurs,”99 both precedents that have been discussed at length above.

C. The Mistaken Precedent and the Exceptional Laws of Espionage The government’s arguments in this case were flawed top to bottom. The government argued that historically tried crimes can be adjudicated on in the present, an idea which does have a solid foundation in the Quirin decision. However, Justice Stone’s argument in Quirin is based on a fundamental misunderstanding about the intentions of the founders. While Stone is correct that spies in the revolutionary times, and Major John Andre specifically, were executed, he misunderstood the rationale for their execution. First, Stone ignored the actions of the founders themselves with regards to spying. Especially during revolutionary times, spying was commonplace, and used by both sides in the Revolutionary War, as even George

96 Michael Paradis et. al. “Petition for Rehearing en Banc.” https://www.cadc.uscourts.gov/ internet/opinions.nsf/BD49CD0AAB20F69A85258052006400AB/$file/11-1324-1641851.pdf, at 7. 97 Id. at 2. 98 Ex parte Quirin, 317 U.S. (1) 1942, at 41. 99 Paradis, supra note 96, at 15. Fall 2020 American Military Commisions lxi Washington famously sent Nathan Hale behind British lines to gather intelligence. Georgetown Law Professor Martin Lederman writes “it is hard to imagine that anyone at the time thought Washington (or Hale) had violated the law of war.”100 If they were not offenses against the law of war, however, why were Hale and John Andre executed? Lederman goes on to argue that spying is a unique case where execution is preventative, not punitive. Spying is not a war crime but allowing a spy to live presents the risk that they could continue to communicate intelligence to the enemy. For that reason, at the time of the revolution, it was seen as acceptable to execute spies without charging or convicting them of crimes. Further proof of this theory comes from the fact that spies cannot be executed if they are discovered in their own camp. The international laws of war declare that a spy must be “treated as a prisoner of war and incurs no responsibility for his previous acts of espionage” if found inside his home territory. 101 This exception appears for no other group and implies that executing spies is only acceptable insofar as it prevents them from transmitting information. 102 If a spy has returned home, and therefore poses no such risk, they can face only the same treatment that is given to regular prisoners of war, since “all possibility of the spy’s information reaching the enemy is destroyed.”103 Even if one were to argue, as Judge Kavanaugh did in his decision, that international law is not binding on Congress in this case, American law recognizes spying as an anomalous case as well. 104 Article 82 of the Articles of War discusses rules of spying and the situations in which spies can be executed. The articles declare that spies are liable to suffer death, but only if they are “found lurking in or about any of the fortifications, posts, quarters or encampments of any of the armies of the United States,”105 reinforcing the idea that execution of spies is merely preventative. Justice Stone misunderstood this distinction, believing that execution of spies in one’s own territory was done to punish a crime, but the strange law surrounding the execution of spies, as well as Washington’s own example, demonstrates Stone’s error, and the government’s error, in relying on this interpretation.

D. Legal Issues with the Historical Conspiracy Charge The government declares in their Al-Bahlul brief that the Lincoln and Nazi saboteur cases “were trial for the offense of conspiracy,” but the truth is much more complicated. 106 Although the Lincoln conspirators were convicted of conspiracy, the legal backing for the tribunal included virtually no mention of that specific crime. In his justification of the tribunals, James Speed wrote that he was asked to 100 Martin S. Lederman, “Of Spies, Saboteurs and Enemy Accomplices,” 105 Geo L.J. (March 2017), at 1597-1598. 101 Id. at 1601. 102 Ibid. 103 Id. at 1602. 104 Al-Bahlul v. United States of America, 3 (D.C. Cir. 2016), at 5. 105 United States Statutes at Large, Ninth Congress, first session (1789-1848), at 359-372, at Article 82. 106 Paradis, supra note 96, at 15. lxii The Undergraduate Law Review at New York University Vol IV: Issue I decide “whether the persons charged with the offense of having assassinated the President can be tried before a military tribunal, or must they be tried before a civil court.”107 Notably, Speed claimed that what the accused are being tried for is the substantive crime of having “assassinated the president,” not the vaguely defined “conspiracy.” Speed concluded, dubiously, that the crime of assassination can fall on all eight being tried: they had all killed the president. The word conspiracy does not appear in the decision at all, and Speed only acknowledges that charge in passing.108 Therefore, while the tribunal convicted the accused on several counts, conspiracy among them, Speed ducked the question of whether the conspiracy charge was valid. The Supreme Court took a similar route as Speed did when writing their Ex parte Quirin opinion. In their decision, the court accepts the legitimacy of Charge I, which alleges that the saboteurs went behind American lines for the purposes of destroying infrastructure.109 The court then argued that it did not have to pass judgement on the legitimacy of Charges II and III, which dealt with aiding the enemy and spying, respectively, since “the first specification of Charge I sets forth a violation of the law of war.”110 Conspicuously absent from the court decision at all is any mention of Charge IV, alleging conspiracy, and the court convicts the men while bypassing conspiracy.111 While these precedents fail to stand up to scrutiny from a legal standpoint, the historical argument against them may be stronger still.

VII. Conclusion and the Issue with Relying on Historical Precedent for Military Tribunals While there are clearly several technical issues with the government’s reading of history with regards to the Johnson tribunal and Ex parte Quirin, there is a larger philosophical point to be made about the use of these examples as justifications for legal precedents. The abuses and miscarriages of justice present in these trials have been well-documented throughout this paper. The trial of the Lincoln conspirators was created and executed in the interest of satisfying a nation hungry for revenge. The trial was unfair and widely seen, even at the time, as a precedent not to be repeated. The government’s other main example, Ex parte Quirin, is no less shameful. Motivated by a desire to save the reputation of federal investigators and to secure death sentences for people who had not committed real crimes, the tribunal was a poor excuse for justice. The Supreme Court, too, in this instance, did not have its finest hour, as they were forced to write an opinion they did not entirely believe in, having already sent six men to the chair. The government in this case, therefore, argues that the standard going forward should be informed by copying some of the

107 11 Op. Att’y Gen. 215, 215 (1865). 108 “I will proceed to give the reasons why I am of the opinion that the conspirators not only may but ought to be tried by a military tribunal.” 109 Ex parte Quirin, 317 U.S. (1) 1942, at 317. 110 Ibid. 111 Charge IV is never mentioned, and “conspiracy,” or any variation thereof, is only written in the background, where Justice Stone writes what the petitioners were charged with. Fall 2020 American Military Commisions lxiii most infamous moments of American justice. The two examples mentioned by the government are not unique in their ignominy. American military tribunal history is fraught and looms as a stain on democracy, from General Jackson executing men found innocent and suppressing free speech, to today, where inmates are tortured and held in Guantanamo Bay without trial. To suggest that military tribunal history be repeated through precedential law reinforces and legitimizes the deadly mistakes America has made. New precedents should be established, ones that value justice and temperance over expediency and revenge. It is easy to give justice to allies, it is hard to give it to foes. The strength to administer justice and due process even, and perhaps especially, to enemies can show the true character of a nation.