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Identifying the International Law Regulating Military Commission August 26, 2006 Full and Fair by What Measure?: Identifying the International Law Regulating Military Commission Procedure David Glazier Associate Professor Loyola Law School Los Angeles 919 Albany St. Los Angeles, CA 90015-1211 [email protected] (213) 736-2242 Introduction President George W. Bush said that America was “at war” even before the final jetliner hijacked on September 11, 2001 had crashed in the Pennsylvania countryside.1 Previous presidents had “declared” metaphorical wars on “poverty,”2 “crime,”3 and “drugs,”4 and President Bush himself had called for a “war on illiteracy” the very day before 9/11.5 So his promise to use “the full resources of our intelligence and law enforcement communities” to bring those responsible for the attacks to justice6 suggested that his concurrent use of the term “war on terror”7 was metaphorically intended as well. But this war would be different. The United Nations Security Council termed the attacks “a threat to international peace and security” and affirmed the “inherent right of individual or collective self-defence.”8 The North Atlantic Treaty Organization (NATO) determined that the events of 9/11 constituted an armed attack against a member state and initiated the first ever deployments of Alliance military forces under Article 5 of the Washington Treaty.9 Most important of all, Congress enacted the Authorization for the Use of Military Force (AUMF), assenting to the use of: 1 See NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 30, 39 (W.W. Norton ed.) (hereinafter “9/11 Report”) 2 Lyndon B. Johnson, Special Message to Congress, March 16, 1964 available at http://www.fordham.edu/halsall/mod/1964johnson-warpoverty.html. 3 See, e.g., Richard Nixon, State of the Union Address, Jan. 30, 1974 available at http://www.thisnation.com/library/sotu/1974rn.html 4 Kirby R. Cundiff, Crime and the Drug War, available at http://w3.ag.uiuc.edu:8001/Liberty/Tales/CrimeAndDrugWar.Html 5 Stephen Hegarty, Bush Calls for War on Illiteracy, St. Petersburg Times, Sep. 11, 2001, available at http://www.sptimes.com/News/091101/Worldandnation/Bush_calls_for_war_on.shtml 6 George W. Bush, Statement by the President in His Address to the Nation, Sep. 11, 2001, available at http://www.whitehouse.gov/news/releases/2001/09/20010911-16.html 7 Id. While some sources prefer the term “war on terrorism,” the White House consistently uses “war on terror.” 8 S.C. Res. 1368 (2001), available at http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement 9 NATO, Statement by NATO Secretary General, Lord Robertson, Oct. 2, 2001, available at http://www.nato.int/docu/speech/2001/s011002a.htm; NATO, Deployment of NATO forces, Oct. 9, 2001, available at http://www.nato.int/docu/update/2001/1008/e1009c.htm. Five airborne early warning aircraft (AWACS) were sent to the United States while the Standing Naval Forces Mediterranean was sent to the eastern portion of that sea all necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.10 The most obvious manifestation of this war has been the combat employment of American military forces against al Qaeda and the Taliban regime which sheltered it in Afghanistan. But the paradigm shift from treating terrorist attacks as criminal acts to acts of war had significant legal ramifications as well, invoking the authority to exercise what the Supreme Court has described as “the ‘fundamental incident[s] of waging war.”11 Among the most important of these powers is authority to detain enemy combatants for the duration of hostilities and to subject those charged with violation of the law of war to military trial.12 The latter is particularly significant, permitting both the use of military tribunals as the trial forum and subject matter jurisdiction over the full scope of the law of war, not just those offenses specified in U.S. criminal statutes. But invocation of the legal advantages of the law of war is not a one-way street. Actions justified by that law must be bound by its rules as well.13 A perplexing challenge of the “war on terror” is identifying specifically which rules out of the myriad of treaties and customary provisions comprising the overall corpus juris of the law of war14 apply to this new conflict. Previously, wars had generally been characterized as either “international” or “non-international,” with defined rules applicable to each. International armed conflict was understood to consist of contests between individual, or groups of, nation 10 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (hereinafter “AUMF”). 11 See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2083 (2005) quoting Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640-41 (2004) (plurality opinion). 12 See Bradley & Goldsmith, supra note 11. 13 See Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the Global War on Terrorism, 118 HARV. L. REV. 2653 (2005). 14 Adam Roberts and Richard Guelff, for example, produce a law of war text compiling treaties and other documents considered to comprise currently effective law, either as binding agreements per se or as declaratory of customary law, together with concise commentary and an index. The third edition runs 765 pages and includes thirty eight separate documents. See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR (3d ed. 2004). 2 states. Non-international armed conflict included struggles between a nation state and armed groups that were seeking independence, or the overthrow of the existing regime, within its own territory.15 The war on terror, however, displays unique characteristics that fail to fit readily into either of these categories. The Bush Administration has taken full advantage of this ambiguity in efforts aimed at avoiding the application of any specific governing international standards to its treatment of detainees.16 The initiative to try suspected terrorists before military commissions provides a clear example of the effort to avoid international constraints. While there is a long history of military commission use to try law of war violations,17 both the U.S. government18 and previous war crimes tribunals acknowledged the applicability of customary international law to their conduct.19 Although President Bush mandated that the Guantanamo commissions provide a “full and fair” trial,20 observers at the initial sessions noted the failure to apply any overarching legal standards beyond the limited Department of Defense rules, resulting in many elements of trial procedure essentially made up as the commissions proceeded.21 Even military judges assigned as presiding officers seemed unable to articulate the legal regimes governing their tribunals.22 15 See, e.g., Common Article 2 of the four Geneva Conventions of August 12, 1949 (defining the international conflicts in which the Conventions apply) and Common Article 3 of those Conventions (defining minimum protections applicable to participants in non-international armed conflict). 16 See, e.g., Memorandum from John C. Yoo & Robert Delahunty to William J. Haynes II, Gen. Counsel to the DOD, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9, 2002), available at http://msnbc.msn.com/id/5025040/site/newsweek/. 17 See, e.g., David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 VA. J. INT’L L. 5 (2005). 18 See, e.g., Respondent’s Answer to Petitions at 28–29, Ex parte Quirin, 317 U.S. 1, in 39 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES 379, 429–30 (1975) 19 See Glazier, supra note 17 at 77-78. 20 George W. Bush, Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918, 918 (2002). 21 See, e.g., Deborah Pearlstein, Day One: Four Issues of Concern, Aug. 23, 2004, available at http://www.humanrightsfirst.org/us_law/detainees/military_commission_diary.htm#day1. 22 See Joshua Pantesco, Guantanamo military judge unsure of what laws govern detainee trial, Jurist, Apr. 4, 2006 at http://jurist.law.pitt.edu/paperchase/2006/04/guantanamo-military-judge-unsure-of.php. 3 Identification and application of the correct international law standards is ultimately crucial to the legality of the Guantanamo trials, however. Failure to do so is certain to result in widespread condemnation of the proceedings at home and abroad. It also may constitute a war crime based upon the decisions of post-World War II war crimes tribunals23 potentially subjecting commission participants to trial themselves by any courts, foreign or domestic, which establish the requisite jurisdiction. As Justice Kennedy noted in his concurring opinion in Hamdan v. Rumsfeld, which rejected the initial commission procedures in the summer of 2006: The Government does not claim to base the charges . on a statute; instead it invokes the law of war. That law, as the Court explained in Ex parte Quirin, derives from ‘rules and precepts of the law of nations’; it is the body of international law governing armed conflict. If the military commission at issue is illegal under the law of war, then an offender cannot be tried ‘by the law of war’ before that commission.24 Although the Hamdan Court halted the military commissions based on holding they violated both the Uniform Code of Military Justice and Common Article 3 (CA3) of the four Geneva Conventions of 1949, it engaged in only rudimentary analysis of the relevant international law issues.
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