Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander? Evan J. Wallach1 Following the terrorist attacks of 11 September 2001, Presi- With this background, Section II traces the history of mili- dent Bush issued a military order providing for trials of cap- tary commissions. The article then emphasizes the evidentiary tured members of al Qaeda and their Taliban supporters by and procedural problems associated with the post-World War II military tribunals2 under evidentiary and appellate rules similar military commission rules derived from Ex parte Quirin,5 upon to those used in military commissions during and after World which President Bush’s proposed commissions are based. War II. The thesis of this article is that these rules violate the Next, Section III discusses the legality of military tribunals Geneva Convention Relative to the Treatment of Prisoners of under current international law. Section IV then argues that War (GPW) because they do not provide an accused with the Quirin-based military commissions fail to meet current stan- same rights accorded a U.S. service member charged with a dards for trying POWs and that they fail to satisfy the proce- similar offense.3 Also, the proposed rules do not meet current dural and evidentiary requirements of the Uniform Code of international law standards for trials of war criminals. As a Military Justice (UCMJ). Finally, based upon the precedent of result, any participant in a military commission trial of a person United States v. Uchiyama,6 the article concludes that partici- protected by the GPW would, in turn, be guilty of a breach of pating in such a commission, when it tries a POW, violates the the GPW, a war crime under U.S. law.4 law of war. I. Introduction A. Background This article examines the structure and history of applicable On 11 September 2001, thousands of civilians were mur- sections of GPW and their application to the proposed defen- dered when armed conspirators hijacked three airliners and dants. Section I outlines the promulgation of President Bush’s used them as flying bombs to attack the World Trade Center military order, concluding that the system fails to provide ade- complex in New York City and the Pentagon in Washington, quately for those accorded Prisoner of War (POW) status. This D.C. The passengers of a fourth hijacked aircraft foiled an article then argues that members of the Taliban and possibly additional attack, but that flight ended in the deaths of the pas- certain al Qaeda members qualify for POW status under the sengers, crew, and hijackers. The President of the United States GPW as detainees of an international conflict. In this context, immediately characterized those attacks as “an act of war.”7 Section I then identifies the issues raised by America’s current Shortly thereafter, he announced that credible evidence pointed proposed use of military commissions. to Osama bin Laden, the leader of the al Qaeda terrorist group, and members of bin Laden’s organization.8 1. Judge, U.S. Court of International Trade; Adjunct Professor, Law of War, Brooklyn Law School, New York Law School; Visiting Professor, Law of War, University of Münster; Major (JAG) U.S. Army (Inactive Reserve, until July 2003); and Webmaster, International Law of War Association, Law of War Home Page, at http:// www.lawofwar.org. J.D., Berkeley, 1976; LL.B. (International Law), Cambridge, 1981. The author dedicates this article to the memory of his father, Albert A. Wallach, 1916-2002, who served from private to captain in the United States Army from 1941 to 1946 and to the memory of U.S. Supreme Court Associate Justice Frank Murphy. The author thanks Sara Schramm of Brooklyn Law School and Raymond Cho of Columbia Law School for their research assistance with this article. Tremendous gratitude is also owed to the numerous editors at the Army Judge Advocate General’s School who challenged the author to make this a more accurate, comprehensive and complete work. The author’s views in this article represent only those of the author and not of any person with whom, or entity with which, he is or was affiliated. Portions of this article are reprinted from the author’s previous work, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for International Legal Procedure?, 37 COLUM. J. TRANSNAT’L L. 851 (1999). The Columbia School of Law has granted permission to reprint the article. 2. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.white- house.gov/news/releases/2001/11/20011113-27.html; U.S. DEP’T OF DEFENSE, MILITARY COMMISSION ORDER NO. 1 (21 Mar. 2002), available at http:// www.defenselink.mil/news/commissions.html [hereinafter MCO No. 1]; Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July 1, 2003) (to be codified at 32 C.F.R. pts. 10-17). 3. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; see MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. II (2002) [hereinafter MCM]. 4. MCM, supra note 3, art. 130; see secs. I.B-I.C, infra (analyzing who is entitled to prisoner of war (POW) status, and when and how this status is determined). 5. 317 U.S. 1 (1942). 6. Case-35-46, War Crimes Branch Case Files, Records of The Judge Advocate General, Record Group 153 (Yokohama, 18 July 1947) (on file with author). 18 NOVEMBER 2003 THE ARMY LAWYER • DA PAM 27-50-366 As al Qaeda members planned and carried out the attacks in While the Taliban equivocated, the United States engaged in America, bin Laden and his terrorist network were living in extensive diplomacy. On 7 October, with the consent of coun- sanctuary in Afghanistan. President Bush, characterizing the tries surrounding Afghanistan, the United States began exten- U.S. response to those attacks as a “war on terror,”9 demanded sive air attacks on the Taliban military infrastructures and the al that Afghanistan’s ruling party, the Taliban, end that sanctuary Qaeda terrorist organization.13 By 21 December 2001, the and turn the members of al Qaeda over to American custody.10 allied coalition held in custody about seven thousand suspected On 18 September 2001, in a joint resolution, Congress, without al Qaeda and Taliban members in Afghanistan.14 declaring war, authorized military action against the Taliban.11 By the end of September, the United Nations Security Council On 13 November 2001, President Bush issued a military had also adopted two resolutions which (1) identified the order providing for the trial of non-U.S. citizens who were attacks on the United States as a threat to international peace members or culpable supporters of al Qaeda before military tri- and security; and (2) mandated that states “[d]eny safe haven to bunals.15 That order, and subsequent statements by the Presi- those who finance, plan, support, or commit terrorist acts.”12 dent,16 Vice President,17 Attorney General,18 Secretary of Defense,19 the White House Counsel,20 and others,21 made it 7. BBC News Online, Bush Calls Attacks “Acts of War” (Sept. 12, 2001), at http://news.bbc.co.uk/hi/english/world/americas/newsid_1537000/1537534.stm (last visited Nov. 17, 2003). 8. See, e.g., President George W. Bush, Speech to the Joint Session of Congress, Washington, D.C. (Sept. 20, 2001) (“The evidence we have gathered all points to a collection of loosely affiliated terrorist organizations known as al Qaeda.”). 9. Id. 10. Id. 11. S.J. Res. 23, 107th Cong. (2001) (enacted as Pub. L. No. 1-7-40, 115 Stat. 224). In a further response to the attacks, on 26 October 2001, Congress adopted the USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, which addresses domestic national security issues. 12. S. Con. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001); S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/RES/ 1373 (2001). 13. Ian Christopher McCaleb, Bush Announces Opening of Attacks, CNN.com (Oct. 7, 2001), available at http://www.cnn.com/2001/US/10/07/ret.attack.bush/ 14. US Questions 7,000 Taliban and al-Qaeda Soldiers, GUARDIAN (Dec. 21, 2001), available at http://www.guardian.co.uk/afghanistan/story/ 0,1284,623701,00.html. 15. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.white- house.gov/news/releases/2001/11/20011113-27.html [hereinafter Bush Order]. The Bush Order provides, in part, that individuals subject to the order include: (1) current or past members of al Qaeda; (2) individuals who “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore” that adversely affected wide United States interests; and (3) individuals who “knowingly harbored one or more individuals” described above. Id. sec. 2(A). 16. On 19 November 2001, President Bush said that the nation was fighting “against the most evil kinds of people, and I need to have that extraordinary option at my fingertips.” Elisabeth Bumiller, Military Tribunals Needed in Difficult Time, Bush Says, N.Y. TIMES, Nov. 20, 2001, at B5. 17. Vice President Dick Cheney, responding to questions following his speech to the U.S.