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11-2002 The aW r on and the Constitution Michael I. Meyerson University of Baltimore School of Law, [email protected]

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Recommended Citation The aW r on Terrorism and the Constitution, 35 Md. B.J. 16 (2002)

This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. AMERICA AT WAR THE LEGAL ISSUES

The War On Terrorism And The Constitution

by Michael I. Meyerson creates a false dichotomy: The complete destruction of our system of government which can be prevented if a "single Discussion of civil liberties during wartime often omit the law" which is made in "extreme tenderness of the citizen's fact that there can be no meaningful liberty at all if our liberty" and is violated to only a "very limited extent." homes and offices are bombed or our loved ones are killed In the real world, though, it is not necessarily obvious or injured by acts of terror. The Government must be giv­ that the violation of the single law is either necessary or en the tools necessary to accomplish its vital mission. The helpful in ensuring the nation's security. Also, the doctrine first priority must be to win the war against terrorism. There espoused by Lincoln has no obvious stopping point, no are, however, other priorities. The United States, in its just way to determine how many or how fundamental are the battle for freedom, must ensure that freedom is preserved laws which the Government may violate in the name of during that battle as well. And achieving both goals is not national security. always easy. An important example is the internment of more than Chief Justice is fond of quoting Abra­ 120,000 Japanese-Americans during World War II. The ham Lincoln's dismissal of judicial criticism over Lincoln's Supreme Court upheld this action, declaring: unilateral suspension of at the beginning [W]e cannot reject as unfounded the judgment of the of the Civil War. Chief Justice Roger Taney, riding circuit, military authorities and of Congress that there were had held the suspension of Habeas Corpus was solely a leg­ disloyal members of that population, whose number islative determination. Ex Parte Merryman, 17 F. Cas. 144 and strength could not be precisely and quickly as­ (D.Md. 1861). Thus, he held, Lincoln's actions were uncon­ certained. We cannot say that the war-making branch­ stitutional, and the arrests sanctioned by them were illegal. es of the Government did not have ground for believing In ignoring the court's decree, Lincoln declared that the that in a critical hour such persons could not readily be greater good must be served and that the necessities of war isolated and separately dealt with, and constituted a overrode specific rights: menace to the national defense and safety, which de­ Must [all law] be allowed to finally fail of execution, manded that prompt and adequate measures be taken even had it been perfectly clear that by the use of the to guard against it. means necessary to their execution some single law, Korematsu v. United States,323 U.S. 214,218 (1944). made in such extreme tenderness of the citizen's liber­ Many years later, though, it was revealed that this "judg­ ty that practically it relieves more of the guilty than of ment of military authorities" was quite suspect. The con­ the innocent, should to a very limited extent be vio­ clusions were largely those of one person, Lieutenant lated? To state the question more directly, are all the General John L. DeWitt, Commanding General of the laws but one to go unexecuted and the Government it­ Western Defense Command, who was responsible for self go to pieces lest that one be violated? West Coast security. Every entity responsible for advis- Abraham Lincoln, ''Message to Congress, July 4, 1861 " in The Official Records of the Ullion alld Confederate Annies, Series IV, I, 311-321. Mr. Meyerson IS a professor of law at the University of Baltimore The limitation of Lincoln's reasoning, though, is that it School of Law.

16 NovemberIDecember 2002 • Vo~ume XXXV Number 6 oA.. /Jove raited 'P ing him, the FBI, the FCC, and Naval In­ power" to justify actions: 146-47 (1948) (Jackson, J., concurring). telligence, found that there was no such It usually is invoked in haste and ex­ threat, and that, in the words of Com­ citement when calm legislative con­ Are We Really At War? mander Kenneth D. Ringle, an expert sideration of constitutional It is sometimes very easy to tell when ~ on Japanese intelligence in the Office of limitation is difficult. It is executed this nation is at war. The day after Pearl Naval Intelligence, "the entire 'Japanese in a time of patriotic fervor that Harbor was bombed, for example, Con­ Problem' has been magnified out of its makes mooeration unpopular. And, gress passed a joint resolution stating, true proportion, largely because of the worst of all, it is interpreted by '''That the state of war between the United physical characteristics of the peo­ judges under the influence of the States and the Imperial Government of ple; .. .it is no more serious than the same passions and pressures. Al­ Japan which has thus been thrust upon problems of the German, Italian, and ways ... the Government urges hasty the United States is hereby formally de­ Communistic portions of the United decision to forestall some emer­ clared ... " However, such formal decla­ States population." Evidence also gency or serve some purpose and rations are rare in American history. The emerged that DeWitt's decision was mo­ pleads that paralysis will result if its only others occurred during the War of tivated in no small part by racial ani­ claims to power are denied or their 1812, the Mexican-American War (1848), mus. He was to declare that "racial confirmation delayed. the Spanish-American War (1898), and affinities are not severed by migration," World War I. and in an off-the-record interview, "[AJ Particularly when the war power is Most of the more than 100 military ac­ Jap is a Jap." Hohri v. United States, 586 invoked to do things to the liberties tions undertaken by the United States F. Supp. 769 (D.D.C. 1984). of people, or to their property or during the course of our history lacked One lesson of history is that the mere economy that only indirectly affect such a declaration. They have been ac­ declaration of military necessity does not conduct of the war and do not relate companied either by Congressional au­ necessarily justify the infringement of civil to the management of the war itself, thorization for the use of force without a liberties. Justice Robert Jackson warned the constitutional basis should be formal declaration (as with Desert Storm that great skepticism was required when scrutinized with care. and, perhaps, the Vietnam War); Con­ Government utilized its so-called "war Woods v. Cloyd W. Miller Co., 333 U.S. 138, gressional funding without actual au­ thorization (such as the Korean War); or Congressional silence (as with the inva­ sion of Grenada in 1983). Knowing whether we are currently "at war" and against whom, is important for ~~ not only determining the legality of the military operations but also the conse­ AuCTIONEERS It quential changes in legal rights and re­ sponsibilities that follow when our nation AwRAISERS'Nc. T/A l!!!~~!!!!~!!~~~~~!!!!!!!!!1 is at war. Before analyzing the current situa­ A Full Service Auction Company tion, it is useful to recall that, while the Constitution provides that the President Serving Central Maryland is "Commander in Chief of the Army and Navy of the United States," (Art. II, For Over 30 Years Sec. 2), it is Congress which has the power "to declare war." (Art. I, Sec. 8). To the framers, this was a vitally im­ • Estates • Foreclosures • Divorce portant distinction. During the debates at the Constitutional Convention, James Madison proposed the final language, • Bankruptcy • Liquidations changing the original draft which would have authorized Congress to "make war." The purpose of the change was Contact Us For Experienced, Confidential "leaving to the Executive the power to Solutions For All Your Auction Needs repel sudden attacks." As Roger Sher­ man of Connecticut stated, "The Exec­ utive should be able to repel and not to 410-489-7200 · GregoryAndWarfield.com commence war." Thus, it is the task of the President to LICENSED & INSURED act, unilaterally if necessary, to oppose A Proud Sponsor of the Make-A-Wish Foundation "sudden attacks," but otherwise the de-

18 November/December 2002 • VoIume)()ON Number 6 cision to begin a war rests with Con­ to initiate a state of war, Osama bin Lan­ statement of Senator John Kerry (D­ gress. The reason for this was the den had previously declared war Mass.) that while the resolution gave the framers' well-founded distrust of mbn- against the United States; in 1998, he President broad authority to retaliate , archs and other leaders who carry their called for the killing of American civil­ against those associated with Septem­ people into unwise conflict. As James ians as well as soldiers, "in any country ber 11, it did withhold authorization for Madison wrote to Thomas Jefferson, in which it is possible to do it." a military attack on "any self-defined ter­ "The constitution supposes, what the One puzzling aspect is that the War on rorist group that you simply don't want History of all Governments demon­ Terrorism is not waged against a partic­ to see around anymore." strates, that the Executive is the branch ular nation. Nonetheless, it is certainly Accordingly, the attack on the Taliban of power most interested in war, & most possible to be in a state of war that is not in Afghanistan was a military action un­ prone to it. It has accordingly with stud­ so directed. As the Supreme Court held dertaken pursuant both to Congressional ied care, vested the question of war in in finding that the country was in a state authorization, and the inherent powers the Legislature." of war during the Civil War, "it is not nec­ of the President as Commander-in-Chief The exclusive power of Congress to essary to constitute war, that both parties to respond to a state of war declared by "commence" war may not be implicat­ should be acknowledged as independent an adversary. By contrast, unless new in­ ed, however, when others have already nations or sovereign States." The Brig Amy formation surfaces linking Iraq to Sep­ declared war on the United States. At Warwick [The Prize Cases], 67 U.s. 635 tember 11, the much-discussed invasion the birth of our Republic, the Barbary pi­ (1862). Thus, the Congressional autho­ of Iraq would not appear authorized. Ini­ rates attacked the ships of nations which rization of force was arguably not neces­ tiating a preemptive strike would seem did not pay protection money, known sary to create a state of war between the to be just the sort of action to "commence" then as "tribute." After Thomas Jeffer­ United States and those behind a conflict which the framers entrusted son became President in 1801, he September 11. What is noteworthy about only to Congress. stopped such payments, and the ruler that authorization, though, is that it may of Tripoli (the "dey") declared war on be read as a specific limitation on the Pres­ Emergency Powers and Civil Liberties the United States. Jefferson sent war ident's authority. After September 11, the Executive ships to the Mediterranean, which were On September 15, 2001, Congress ap­ Branch claimed broad powers for deal­ then attacked by a Tripolitan ship. After proved a joint resolution which declared, ing with those it believed either were ter­ the American frigates prevailed in bat­ That the president is authorized to use rorists or were assisting terrorists. First, tle, the enemy ship was disarmed and all necessary and appropriate force it claimed the right to try non-citizens released. Jefferson explained to Congress against those nations, organizations, or before a military tribunal, with rules far that the reason the ship was not captured persons he determines planned, autho­ different from normal criminal trials. was that, since Congress had not de­ rized, committed, or aided the terrorist Next, it asserted the right to categorize clared war, the rules of war permitting attacks that occurred on Sept. 11,2001, both citizens and non-citizens as "ene­ such capture did not apply. (Thomas Jef­ or harbored such organizations or per­ my ." The significance of this ferson: First Annual Message to Con­ sons, in order to prevent any future acts label, according to the Government, is gress, December 8,1801) of international terrorism against the that it permits the Government to hold Alexander Hamilton mocked Jeffer­ United States by such nations, organiza­ even citizens indefinitely without charg­ son's highly fonna listic analysis as an "ab­ tions or persons. Authorization for Use ing them with a crime and without ac­ surdity" which was "so repugnant to of Military Force, Pub. L. No. 107-40, 11 cess to a lawyer. good sense, so inconsistent with nation­ Stat. 224 (2001). The military has used special tribunals al safety ... " (Alexander Hamilton, The Even though this does not contain a since the Revolutionary War. Major John Examination, no. 1, Dec. 17, 1801). Hamil­ formal , it certainly Andre, Adjutant-General to the British ton argued that the Congressional pow­ should be seen as resolving any linger­ Army, and co-conspirator with Benedict er to declare war meant that, when our ing doubt about military action against Arnold, was tried by a "Board of General nation was at peace, only Congress could those who planned, carried out, or har­ Officers" appointed by General Wash­ change it to a state of war. But, he stated, bored those involved in September 11. ington. He was found guilty of spying "when a foreign nation declares, or open­ What is significant is that this autho­ and hanged on October 2,1780. The first ly and avowedly makes war upon the rization is explicitly not a blank check fonnal military tribunals were established United States, they are then by the very for a generalized "war on terrorism." by General Winfield Scott during the fact, already at war, and any declaration According to The Baltimore Sun, Con­ Mexican-American War in 1848. on the part of Congress is nugatory: it is gress rejected White House language The Civil War saw extensive use of at least unnecessary." which would have permitted the pres­ these tribunals, highlighted by two in­ Under Hamilton's analysis, it could ident to initiate military action against teresting Supreme Court decisions. In the well be argued that no declaration of terrorists not linked to the attacks of Sep­ first, Ex Parte Val/andigham, 68 U.S. 243 war was necessary at all after Septem­ tember 11. (Karen Hosler, "Congress en­ (1863), the Court refused to disturb the ber 11 to combat the terrorists who dorses the use of force," Baltimore Sun conviction of former Ohio congressman planned and launched the attack. As if September 15, 2001, at lA) The plain lan­ Clement Vallandigham "for having ut­ this attack were not sufficient by itself guage of the resolution confirms the tered, in a speech at a public meeting, dis-

MARYLAND BAR JOURNAL 19 loyal sentiments and opinions ... " The nounced its sentence. of the atrocities was in the form of ex Court stated that it had no power to "re­ Considering the nature of the offense parte affidavits and depositions. He view or reverse ... the proceedings of a and the status of the war in 1942, the out­ was never given the opportunity to 4 military commission." come of Quirin seems reasonable. By con­ cross-examine any witness on this A few years later, the Supreme Court trast, another tribunal case, In re crucial issue. overturned the death sentence imposed Yamashita, 327 U.s. 1 (1946), shows the The tribunal was permitted to admit by a military tribunal against Lamdin P. perils of such tribunals. any evidence "as in its opinion would Milligan for "conspiracy against the Unit­ Tomoyuki Yamashita was the Com­ be of assistance in proving or disprov­ ed States," and freed the prisoner. Ex Parte manding General of the Japanese Army ing the charge ... [or] would have pro­ Milligan,71 U.S. 2 (1866). The Court ruled in the Philippines. After surrendering bative value in the mind of a reasonable that neither the laws of war nor the au­ to the Americans, he was charged with man." The tribunal was also free to de­ thority of military tribunals could be "ap­ violating the laws of war by permitting termine what weight to give any of the plied to citizens in states which have his soldiers to commit atrocities against evidence received without restraint. upheld the authority of the government, the population. He was con­ What followed was a cascade of hearsay, and where the courts are open and their victed by a military tribunal and sen­ second and third-hand reports, and even process unobstructed." tenced to death. an army "propaganda film." In the The most relevant cases for the current Although the Supreme Court upheld words of Justice Rutledge, "[P]etitioner situation come from the Second World the tribunal, two Justices, has been convicted of a crime in which War, and show both the strengths and and Wiley B. Rutledge, delivered knowledge is an essential element, with weaknesses of military tribunals. The first poignant dissents which reveal the dan­ no proof of knowledge other than what case, Ex Parte Quirin, 317 U.S. 1 (1942), in­ gers of tribunals. They made the follow­ would be inadmissible in any other cap­ volved eight saboteurs, trained at a "sab­ ing observations: ital case or proceeding under our sys­ otage school" near Berlin. They landed 1) The charge against Yamashita tem, civil or military ... " on the shores of the United States, four in was improper. He was charged with There are several important lessons for Florida and four in , discard­ failure to control his troops, but such our current situations. First, military tri­ ed their uniforms, put on civilian clothes, control was made impossible by the bunals come with a price in terms of re­ and hid their cache of explosives and in­ American attack of the Philippines: liability and fairness. Especially when cendiary devices. They were captured be­ "To use the very inefficiency and dis­ our civil and criminal courts are func­ fore they could execute their plan to blow organization created by the victorious tioning, we should be reluctant to relin­ up war industries and war facilities. forces as the primary basis for con­ quish the protections of the Fifth and President Roosevelt appointed a Mil­ demning officers of the defeated Sixth Amendment. After all, the Gov­ itary Commission and directed it to try armies bears no resemblance to justice ernment was able to conduct trials of the eight saboteurs for offenses against or to military reality." both Timothy McVeigh and the terror­ the (Order of July 2, 1942, 7 2) He was given inadequate time to ists who, in 1993, detonated a bomb in Fed. Reg. 5103 (1942». The Court upheld prepare. On the day of arraignment, the World Trade Center. the use of the military tribunals. First, October 8, three weeks before the trial Second, it is indisputable that the the Court said that it was appropriate to began, petitioner was served with a bill Supreme Court has jurisdiction to review term the saboteurs "unlawful combat­ of particulars specifying 64 items set­ Government claims as to who is a com­ ants": "[T]hose who during time of war ting forth a vast number of atrocities batant properly subject to military tri­ pass surreptitiously from enemy terri­ and crimes allegedly committed by bunals. In arguing that Yaser Esam tory into our own, discarding their uni­ troops under his command. Three days Hamdi (a U.s. citizen who was found forms upon entry, for the commission before trial, on October 26, the prose­ among captured Taliban prisoners held of hostile acts involving destruction of cution filed a supplemental bill of par­ at the Guantanamo Bay) should not be life or property, have the status of un­ ticulars, containing 59 more permitted to see a lawyer, the Govern­ lawful combatants punishable as such specifications. The tribunal denied re­ ment made the extraordinary claim that by military commission." peated defense requests for a continu­ the court was not empowered to review Next, the Court stated that the fact that ance, even though the attorneys [all at all the Government's designation of one of the saboteurs may have been a military personnel] had been "working an American citizen as an enemy com­ U.S. citizen was irrelevant: "Citizens day and night," with "no time what­ batant: "Given the constitutionally lim­ who associate themselves with the mil­ soever to prepare any affirmative de­ ited role of the courts in reviewing itary arm of the enemy government, and fense," as they had been fully occupied military decisions, courts may not sec­ with its aid, guidance and direction en­ trying "to keep up with that new Bill ond-guess the military's determination ter this country bent on hostile acts, are of Particulars." that an individual is an enemy combat­ enemy belligerents ... " 3) The rules of evidence violated all ant and should be detained as such." Two of the saboteurs who cooperated principles of fundamental fairness. Hamdi v Rumsfeld, _ F.3d _ (4th Cir. were sentenced to jail. The other six were The only evidence the tribunal heard July 12, 2002). executed three days after the Tribunal an- concerning Yamashita's knowledge Similar claims repeatedly have been

20 November/December 2002 • Volume 'XXXV Number 6 rejected by the Court. While granting President Truman's attempt to take over information." New York Times Co.,403 U.S. great deference to the President, the the steel mills. Youngstown Sheet & Tube at 723-24 (Douglas, J., concurring». Supreme Court in Quirin declared, Co. v. Sawyer, 343 U.S. 579 (1952). Simi­ We, as lawyers and as citizens, need to "[N]either the [President's] Proclama­ larly, during the Vietnam War, the Court maintain a difficult balance between pa­ tion nor the fact that they are enemy rejected an attempt by President Nixon triotism and skepticism. The horrors of aliens forecloses consideration by the to suppress publication of a classified September 11 must never be repeated, courts of petitioners' contentions that study of that war [the Pentagon Papers], and it falls to the Federal Government in the Constitution and laws of the Unit­ despite the Government's claim that re­ general and the President, in particular, ed States constitutionally enacted lease of the papers posed a grave and im­ to accomplish this formidable task. forbid their trial by military commis­ mediate danger to the security of the At the same time, we must ensure that sion." As Justice Murphy observed in United States. New York Times Co. v. our democratic system of government is Yamashita, the Court assumed jurisdic­ United States, 403 U.S. 713 (1971). protected. Justice stated tion to hear the claim: "Thus the ob­ One of the most interesting things to that it was"absurd" to worry that Harry noxious doctrine asserted by the note about both those cases is that they Truman, that "representative product of Government in this case, to the effect reveal that claims of emergency cannot the sturdy democratic traditions of the that restraints of liberty resulting from always be taken at face value. For exam­ Mississippi Valley," would become a dic­ military trials of war criminals are po­ ple, President Truman had announced tator. Youngstown Sheet & Tube Co., 343 litical matters completely outside the that, "any stoppage of steel production U.s. at 593 (Frankfurter, J., concurring). arena of judicial review, has been would immediately place the Nation in Nonetheless, Frankfurter warned, "The rejected fully and unquestionably." peril." Youngstown Sheet & Tube Co., 343 accretion of dangerous power does not U.s. at _ ( Vinson, c.J., dissenting). come in a day. It does come, however Concluding Thoughts Nonetheless, despite the steelworkers go­ slowly, from the generative force of Chief Justice William Rehnquist has ing on strike for fifty-three days follow­ unchecked disregard of the restrictions apparently adopted much of the war­ ing the Court's ruling, there was no steel that fence in even the most disinterest­ time philosophy of Abraham Lincoln. In shortage or harm to the war effort. See ed assertion of authority." fact, he chose Lincoln's phrase "All the generally M. Marcus, Truman and the Steel There is one final peril of which we Laws but One," as the title for his book Seizure Case (1977). must be aware. It almost seems unfair on civil liberties during times of war. In Similarly, the Government declared that we confront those who killed thou­ a recent speech, Rehnquist reviewed cas­ that publication of the Pentagon Papers sands of innocent , who rejoice es from both the Civil War and World would create a "grave and immediate at destruction and heartache, while we War II and noted that in both conflicts, danger to the security of the United attempt to follow the commands of our "The courts, for their part, have largely States." Brief for the United States, in New own Constitution. Nevertheless, as Jus­ reserved the decisions favoring civil lib­ Yark Times Co. v. United States, 403 U.S. 713 tice Frank Murphy wrote in 1946, the bru­ erties in wartime to be handed down af­ (1971), at 7. Again, history does not reveal tality and ruthlessness of those we oppose ter the war was over." To lawyers and that any danger resulted other than the cannot, "justify the abandonment of our judges, this may seem a thoroughly un­ "embarrassment" of the Government pre­ devotion to justice ... To conclude other­ desirable state of affairs, but in the greater dicted by Justice Douglas (''The dominant wise is to admit that the enemy has lost scheme of things it may be best for all con­ purpose of the First Amendment was to the battle but has destroyed our ideals." cerned." Remarks of Supreme Court Chief prohibit the widespread practice of gov­ In re Yamashita, 327 U.S. 1 (1946) (Mur­ Justice William A. Rehnquist, Director's Fo­ ernmental suppression of embarrassing phy, J., dissenting). to rum, Woodrow Wilson International Center for Scholars, November 17, 1999. Cases such as Ex Parte Vallandigham and Korematsu v. United States occurred during war-time. Meanwhile, cases such as (holding that the mil­ itary cannot substitute its tribunals for civil courts which are able to function) and Duncan v. Kahanamoku, 327 U.S. 304 (1946) (same), occurred after the end of the conflict. The Chief Justice may be overlooking GAYLON Voice. Data· Video a more recent trend, which indicates that COMMUNICATIONS war-time courts may no longer be as def­ erential or intimidated, depending on Business Telephone Systems - Voice Mail- Call Accounting Systems one's point of view. During the Korean War, the Supreme Court struck down Owings Mills, Maryland • 410-363-6600

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