Stacking the Deck Against Suspected Terrorists
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Military Tribunals: the Quirin Precedent
Order Code RL31340 CRS Report for Congress Received through the CRS Web Military Tribunals: The Quirin Precedent March 26, 2002 Louis Fisher Senior Specialist in Separation of Powers Government and Finance Division Congressional Research Service The Library of Congress Military Tribunals: The Quirin Precedent Summary On November 13, 2001, President George W. Bush issued a military order to provide for the detention, treatment, and trial of those who assisted the terrorist attacks on the two World Trade Center buildings in New York City and the Pentagon on September 11. In creating a military commission (tribunal) to try the terrorists, President Bush modeled his tribunal in large part on a proclamation and military order issued by President Franklin D. Roosevelt in 1942, after the capture of eight German saboteurs. This report describes the procedures used by the World War II military tribunal to try the eight Germans, the habeas corpus petition to the Supreme Court, and the resulting convictions and executions. Why was the tribunal created, and why were its deliberations kept secret? How have scholars evaluated the Court’s decision in Ex parte Quirin (1942)? The decision was unanimous, but archival records reveal division and disagreement among the Justices. Also covered in this report is a second effort by Germany two years later to send saboteurs to the United States. The two men captured in this operation were tried by a military tribunal, but under conditions and procedures that substantially reduced the roles of the President and the Attorney General. Those changes resulted from disputes within the Administration, especially between the War Department and the Justice Department. -
Ex Parte Quirin", the Nazi Saboteur Case Andrew Kent
Vanderbilt Law Review Volume 66 | Issue 1 Article 3 1-2013 Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case Andrew Kent Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the International Law Commons Recommended Citation Andrew Kent, Judicial Review for Enemy Fighters: The ourC t's Fateful Turn in "Ex parte Quirin", the Nazi Saboteur Case, 66 Vanderbilt Law Review 150 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol66/iss1/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Judicial Review for Enemy Fighters: The Court's Fateful Turn in Exparte Quirin, the Nazi Saboteur Case Andrew Kent 66 Vand. L. Rev. 153 (2013) The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post- 9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation's military had a right to access civilian courts during wartime to challenge their trial before a military commission. -
Sarily Represent the Views of Either the Judge Advocate General"S School, U
PRETRIAL RESTRAINTi A COMPARATIVE HISTORICAL ANALYSIS OF AMERICAN, BRITISH, AND CANADIAN MILITARY LAW A Thesis Presented to The Judge Advocate General's School, U. S. Army The opinions and conclusions expressed herein are those of the individual student author and do not neces- sarily represent the views of either The Judge Advocate General"s School, U. S. Army, or any other governmental agency. References to this study should include the foregoing statement. by Major Robert W. Letendre, OF102527 April, 1969 SCOPE A comparative historical study of American, British, and Canadian military law with respect to pretrial restraint or imprisonment, with particular emphasis accorded to the historical precedents of the imposition of time limitations for the serving of charges and the bringing to trial of an accused in confinement. TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION I II. EVOLUTION OF MILITARY LAW PRIOR TO THE AMERICAN REVOLUTION 3 A. Historical Development of Articles o f war 3 B. Limitation on Courts-Martial Juris diction . ■. •• • 6 C. British Articles of War 1689-1749... 12 D. Limitation on Military Pretrial Con finement , 16 III. AMERICAN ARTICLES OF WAR FROM 1775 TO 1875 18 A. American Articles of War 1775-1861. 19 B . Civil War Enactments 30 C. Articles of War 1874 37 IV. AMERICAN MILITARY LAW IN THE 20ch CENTURY.37 A. Articles of War 1916 - 1920 37 B. Articles of War 1921 - 1969 51 V. BRITISH MILITARY LAW 54 A. Military Law of England 1774 - 1969.. 54 B. Military Law of Canada 1867 - 1969... 62 VI. CONCLUSIONS 69 TABLE OF CASES AND STATUTES 76 BIBLIOGRAPHY 79 I. -
The Common Law of War
Cornell University Law School Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 11-2016 The ommonC Law of War Jens D. Ohlin Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the International Law Commons Recommended Citation Jens David Ohlin, "The ommonC Law of War," 58 William & Mary Law Review (2016) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE COMMON LAW OF WAR JENS DAVID OHLIN* ABSTRACT In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historicalmaterials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article con- cludes that the "common law of war" referred to a branch of the law of nations that applied during internalarmed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaboratedby the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of naturallaw, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by in- ternational law as formal states were. -
Amicus Brief by Quirin Historians
No. 08-368 ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- ALI SALEH KAHLAH AL-MARRI, Petitioner, v. DANIEL SPAGONE, United States Navy Commander, Consolidated Naval Brig, Respondent. --------------------------------- ♦ --------------------------------- On Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit --------------------------------- ♦ --------------------------------- BRIEF OF HISTORIANS AND SCHOLARS OF EX PARTE QUIRIN AS AMICUS CURIAE IN SUPPORT OF PETITIONER --------------------------------- ♦ --------------------------------- JONATHAN M. FREIMAN KENNETH D. HEATH Of Counsel ALISON M. WEIR NATIONAL LITIGATION PROJECT WIGGIN AND DANA LLP OF THE ALLARD K. One Century Tower LOWENSTEIN CLINIC P.O. Box 1832 YALE LAW SCHOOL New Haven, CT 06508-1832 127 Wall Street (203) 498-4400 New Haven, CT 06511 (203) 498-4584 ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i TABLE OF CONTENTS Page INTERESTS OF AMICI CURIAE ......................... 1 SUMMARY OF THE ARGUMENT ....................... 4 ARGUMENT........................................................... 5 I. The Historical Circumstances Surrounding Quirin........................................................... 5 A. Background: the covert invasion, cap- ture and military commission trial....... 5 B. The Legal Challenge: habeas petitions, -
The Civilianization of Military Law
THE CIVILIANIZATION OF MILITARY LAW Edward F. Sherman* PART I I. INTRODUCTION Military law in the United States has always functioned as a system of jurisprudence independent of the civilian judiciary. It has its own body of substantive laws and procedures which has a different historical deri- vation than the civilian criminal law. The first American Articles of War, enacted by the Continental Congress in 1775,1 copied the British Arti- cles, a body of law which had evolved from the 17th century rules adopted by Gustavus Adolphus for the discipline of his army, rather than from the English common law.2 Despite subsequent alterations by Con- gress, the American military justice code still retains certain substantive and procedural aspects of the 18th century British code. Dissimilarity between military and civilian criminal law has been further encouraged by the isolation of the court-martial system. The federal courts have always been reluctant to interfere with the court-martial system, as ex- plained by the Supreme Court in 1953 in Burns v. Wilson:3 "Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no super- visory power over the courts which enforce it .... As a result, the court-martial system still differs from the civilian court system in such aspects as terminology and structure, as well as procedural and sub- stantive law. The military has jealously guarded the distinctive aspects of its system of justice. -
US Citizens As Enemy Combatants
Journal of Civil Rights and Economic Development Volume 18 Issue 2 Volume 18, Spring 2004, Issue 2 Article 14 U.S. Citizens as Enemy Combatants: Indication of a Roll-Back of Civil Liberties or a Sign of our Jurisprudential Evolution? Joseph Kubler Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. U.S. CITIZENS AS ENEMY COMBATANTS; INDICATION OF A ROLL-BACK OF CIVIL LIBERTIES OR A SIGN OF OUR JURISPRUDENTIAL EVOLUTION? JOSEPH KUBLER I. EXTRAORDINARY TIMES Exigent circumstances require our government to cross legal boundaries beyond those that are unacceptable during normal times. 1 Chief Justice Rehnquist has expressed the view that "[w]hen America is at war.., people have to get used to having less freedom."2 A tearful Justice Sandra Day O'Connor reinforced this view, a day after visiting Ground Zero, by saying that "we're likely to experience more restrictions on our personal freedom than has ever been the case in our country."3 However, extraordinary times can not eradicate our civil liberties despite their call for extraordinary measures. "Lawyers have a special duty to work to maintain the rule of law in the face of terrorism, Justice O'Connor said, adding in a quotation from Margaret 1 See Christopher Dunn & Donna Leiberman, Security v. -
The Influence of Ex-Parte Quirin and Courts
Copyright 2008 by Northwestern University School of Law Vol. 103 Northwestern University Law Review Colloquy THE INFLUENCE OF EX PARTE QUIRIN AND COURTS-MARTIAL ON MILITARY COMMISSIONS Morris D. Davis* Professor Greg McNeal was an academic consultant to the prosecution during my tenure as the Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba. We had similar perspectives on many issues, and we still confer on detainee matters. I concur with the views expressed in his essay.1 I write to address two issues Professor McNeal identified and com- ment on how they affect the military commissions. First, I examine the case of the Nazi saboteurs—captured, tried, and executed in the span of seven weeks in 1942—and its influence on the decision in 2001 to resurrect military commissions. Second, I assess the conflicting statutory provisions in the Military Commissions Act and the impact on full, fair, and open tri- als. I. ATTEMPTING TO REPEAT HISTORY Professor McNeal argues that the administration chose military com- missions to protect information collected for intelligence (intel) purposes from disclosure. Safeguarding intel, particularly the sources and methods used to acquire information, was a key factor, but I believe the decision had a broader basis heavily influenced by a precedent-setting trial in 1942 that became the template for the President‘s Military Order of November 13, 2001.2 Shortly after midnight the morning of June 13, 1942, four men left a German submarine and came ashore at Amagansett Beach, New York.3 * Morris D. Davis served as Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba, from September 2005 to October 2007. -
Continuing Civilianization of the Military Criminal Legal System Fredric I
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2017 From Rome to the Military Justice Acts of 2016 and beyond: Continuing Civilianization of the Military Criminal Legal System Fredric I. Lederer William & Mary Law School, [email protected] Repository Citation Lederer, Fredric I., "From Rome to the Military Justice Acts of 2016 and beyond: Continuing Civilianization of the Military Criminal Legal System" (2017). Faculty Publications. 1943. https://scholarship.law.wm.edu/facpubs/1943 Copyright c 2017 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs 512 MILITARY LAw REVIEW [Vol. 225 FROM ROME TO THE MILITARY JUSTICE ACTS OF 2016 AND BEYOND: CONTINUING CIVILIANIZATION OF THE MILITARY CRIMINAL LEGAL SYSTEM FREDRIC I. LEDERER* I. Introduction The recent, but unenacted, proposed Military Justice Act of 2016,' the very different and less ambitious, but enacted, Military Justice Act of 2016,2 and congressional actions and proposals to sharply modify the military criminal legal system to combat sexual assault and harassment3 provide both opportunity and necessity to reevaluate the fundamental need for and nature of the military criminal legal system. With the exception of the 1962 amendment to Article 15 of the Uniform Code of Military Justice to enhance the commander's punishment authority,' the modem history of military criminal law largely is defined by its increasing civilianization. My thesis is that we are close to the point at which that process will no longer meet the disciplinary needs of the modem armed forces, if, indeed, it does today. -
Trial of Unlawful Enemy Belligerents Charles F
Cornell Law Review Volume 29 Article 7 Issue 1 September 1943 Trial of Unlawful Enemy Belligerents Charles F. Barber Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Charles F. Barber, Trial of Unlawful Enemy Belligerents, 29 Cornell L. Rev. 53 (1943) Available at: http://scholarship.law.cornell.edu/clr/vol29/iss1/7 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. TRIAL OF UNLAWFUL ENEMY BELLIGERENTS CHARLES F. BARBER The Supreme Court introduced a new test of military jurisdiction when it decided in Ex parte Quinn.' that because the Nazi saboteurs were "unlaw- ful enemy belligerents" they were subject to trial by military commission. For a full understanding of the proper place of this newly discovered juris- dictional principle in our military and constitutional law, it will be necessary to examine the Articles of War to determine whether any or all of them are applicable to the trial by military commission of "unlawful enemy bel- ligerents," and if so to decide whether such Articles effect a valid congres- sional limitation upon the power of the President as Commander in Chief of the Army and Navy. Since these problems involve "unlawful enemy belligerents," it will be appropriate first to examine the meaning of the term.2 I. THE RULES OF WAR When civilized peoples exult at the news that their bombers have devas- tated a great city, one wonders what has become of the "laws of humanity and the dictates of the public conscience," which not so long ago sought to mitigate the severity of war by confining it, so far as possible, to the destruc- tion of the armed forces of the enemy.3 One wonders if the so-called "rules of war" are more than philosophers' revel-ies. -
The Oldest North American Military Articles – the Circumstances Surrounding Their Enactment and Their Characteristics1
CZASOPISMO PRAWNO-HISTORYCZNE Tom LXXII — 2020 — Zeszyt 1 Karol Łopatecki (Białystok) The oldest North American military articles – the circumstances surrounding their enactment and their characteristics1 INTRODUCTION The 16th century and the beginning of the 17th century are the golden age of the development of military articles in Europe. This was the time when this type of normative acts was very frequently published, modified, and it was also a time of their dynamic development. There were attempts to implement the majority of ideas in this area of military affairs by introducing them into military articles. It is worth mentioning that among the innovations, which appeared at the time, were the appearance of norms pertaining to rules of obedience which were patterned on ancient Rome, the introduction of shooting drills as well as of general military drills, and creating proper rules of behaviour in battle, enforcing hygiene rules, etc. The role of all of the aforementioned norms amounted to the following: organization of camp life (garrison); establishing the rules of military engagement; regulating the relations between soldiers and civilian population; shaping the issue of obedience, chain of command, and regulating the significance of an order; the introduction 1 K. Łopatecki, Najstarsze północnoamerykańskie artykuły wojskowe, “Czasopismo Prawno- Historyczne” [Journal of Law and History] [CPH] 2013, t. LXV, issue 1, pp. 175–201. The current version of the article has been prepared as a part of the SONATA research project of Narodowe -
"Worst of the Worst": the Constitutional Rights of Non-Citizen Enemies in World War II and the War on Terror Lane Hannah Corrigan Claremont Mckenna College
Claremont Colleges Scholarship @ Claremont CMC Senior Theses CMC Student Scholarship 2017 Protecting the "Worst of the Worst": The Constitutional Rights of Non-Citizen Enemies in World War II and the War on Terror Lane Hannah Corrigan Claremont McKenna College Recommended Citation Corrigan, Lane Hannah, "Protecting the "Worst of the Worst": The onC stitutional Rights of Non-Citizen Enemies in World War II and the War on Terror" (2017). CMC Senior Theses. 1481. http://scholarship.claremont.edu/cmc_theses/1481 This Open Access Senior Thesis is brought to you by Scholarship@Claremont. It has been accepted for inclusion in this collection by an authorized administrator. For more information, please contact [email protected]. Claremont McKenna College Protecting “the Worst of the Worst”: The Constitutional Rights of Non-Citizen Enemies in World War II and the War on Terror submitted to Professor George Thomas by Lane Corrigan for Senior Thesis Fall 2016 December 5, 2016 Abstract After the terrorist attacks of September 11, 2001, President Bush authorized the detention of certain non-citizens suspected of terrorism at the naval base in Guantanamo Bay, Cuba. Beginning in 2004, the Supreme Court considered whether these non-citizens were entitled to rights under the Constitution. In deciding that question, the Court compared the facts in the War on Terror cases with World War II cases that dealt with the rights of captured Nazis. Though the cases from World War II denied all protections to nonresident enemies, the Court in 2004 and 2008 determined that detentions in Guantanamo were unique. As such, the Court held that non-citizens detained at Guantanamo had certain constitutional privileges.