On November 15, the defense rested in the trial of terrorism suspect, Abu Khattala, the alleged conspirator behind the attack in Benghazi, Libya, which resulted in the deaths of U. Ambassador Christopher Stevens and three other Americans. The evidence against Khattala presented before the D. The jury in his trial is likely to produce a verdict some time this week. Yet his trial lasted seven largely uneventful weeks. Jury selection, evidence presentation, witness testimony—all proceeded with the recognizable regularity of criminal trials in federal court.
The press and the public took scant notice. In hindsight, their fuss was unnecessary: Since then, terrorism trials in New York and elsewhere have proceeded efficiently under standard courtroom procedures, from jury selection through sentencing. In another case in September , a federal court found Muhanad Mahmoud Al-Farekh guilty of, among other things, participation in an attack on a U. Likewise, a federal court in Boston just convicted its first terrorism defendant since Dzhohkar Tsarnaev, the Boston Marathon bomber, on several charges related to a plot to kill Americans on behalf of the Islamic State.
These cases are, notably, all holdovers from the Obama years. It remains unclear whether President Donald Trump and Jeff Sessions, his attorney general, will bring the full array of terrorism cases—involving citizens, non-citizens, those apprehended in the United States, and those apprehended abroad—to court.
But the president has been making his feelings about the courts known, casting into doubt whether they will remain a viable venue for terrorism prosecutions. Yet by the next day , Saipov had been arraigned in federal court. For years, the Justice Department has worked to ensure that terrorism suspects wind up in federal court and not in military commissions, and certainly not in indefinite detention without facing charge or trial as is the case with the 41 detainees still held at Guantanamo Bay.
Continuing a Bush-era trend, prosecutors under Obama took terrorism cases to trial efficiently. At times, the courts allowed the prerogatives of national security to justify exceptions that departed from conventional criminal procedure and substantive law. Judges, for instance, permitted the government to substitute summaries for classified materials favorable to the accused, as opposed to the actual documents themselves. In several cases, they also admitted into evidence the fruits of electronic surveillance—material drawn, for example, from warrantless collection of Americans' communications—whose constitutionality remains contested and in some respects still undecided by the appellate courts.
In several cases, federal judges tolerated lengthy military detention for questioning before indicting suspects. Why did the federal courts permit procedural departures? During his confirmation hearing, Deputy Attorney General Rod Rosenstein, a career federal prosecutor, signaled his preference for using federal courts for terrorism prosecutions, a sentiment that has up to now been widely shared inside the Justice Department.
Even when terrorism defendants chose to represent themselves or refused to appear in court, their trials proceeded with little interruption or delay. Terrorism cases tried in federal court have produced harsh results: Sentences exceed the national average and acquittals remain virtually impossible. In , in a Virginia federal court, Russian national and Taliban fighter Irek Ilgiz Hamidullin was found guilty of conspiring to attack Afghan police and U.
By contrast, under Bush, those accused of killing Americans on the active battlefield were sent to Guantanamo. These were primarily American youth, arrested on U. The majority were no older than 25; most did not have criminal records. The Constitution empowers the Congress to declare war and "make rules concerning captures on land and water," to define and punish violations of the "Law of Nations," and to make regulations to govern the armed forces.
Generally, the power of the President to convene military commissions flows from his authority as Commander in Chief of the Armed Forces and his responsibility to execute the laws of the nation. Caselaw suggests that military commissions could try as enemy belligerents those accused of committing war crimes even if they hold U.
Congress has thus recognized the authority to convene military commissions, and has delegated to the President the authority to set their rules of procedure, both trial and post-trial.
Most of the United States' experience with military commissions relates to occupied territory or conditions of martial law. Although the current crisis does not fit the typical circumstances associated with war crimes committed by otherwise lawful combatants in obvious theaters of war, there is some precedent for convening military commissions to try enemy belligerents for conspiring to commit violations of the law of war outside of any recognized war zone.
The use of military commissions by the United States dates back at least until the war with Mexico in the 's. During the occupation of Mexico in , General Winfield Scott convened "councils of war" to try Mexican citizens accused of violations of the law of war, such as committing guerrilla warfare or enticing American soldiers to desert.
In April , Union Army General Order Number declared that military commissions could prosecute "cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial" by using the common law of war. After the outbreak of the Civil War, Congress enacted the Act of March 3, , relating to habeas corpus, and regulating judicial proceedings in certain cases authorizing the suspension of habeas corpus during the Rebellion.
The government sought to prosecute members of a group called the Sons of Liberty, an organized group of conspirators operating in Indiana who had allegedly been hired by Confederate officials to destroy the North.
Milligan, who was convicted and sentenced to death on charges of conspiracy against the government, giving aid and comfort to the enemy, inciting insurrection, disloyal practices, and violation of the law of war, was granted his petition to the Court for habeas corpus. The Supreme Court recognized military commission jurisdiction over violations of "laws and usages of war," but stated those laws and usages " However, in the Attorney General found that co-conspirators charged in the assassination of President Lincoln could be tried by military commission, despite the fact that the courts were operating in Washington, D.
One of the men tried was Dr. Samuel Mudd, sentenced to life in prison for aiding and abetting after the fact the conspiracy by providing medical assistance, lodging, and horses to John Wilkes Booth and a co-conspirator. Mudd later received a full pardon for his work in battling yellow fever in the prison. His great-grandson filed an application with the Army Board for Correction of Military Records asserting his great-grandfather was innocent of the charges and that the military commission lacked jurisdiction to try a citizen of Maryland when the courts were fully functional.
The Board recommended the conviction be set aside, but the Secretary of Defense denied the application. Samuel Mudd was charged with a law of war violation, it was permissible for him to be tried before a military commission even though he was a United States and Maryland citizen and the civilian courts were open at the time of the trial. In the United States made a treaty with the Modoc Indians in which the tribe agreed to remain on a reservation in the State of Oregon. United States troops were subsequently sent out to cause them to return to the reservation after they had left it.
A conflict ensued, and soon thereafter the Indians allegedly murdered several local citizens and their families. More fighting between the U. The U. During the negotiations, the Modocs "treacherously assassinated" two negotiators and severely wounded the third. Captain Jack, the leader of the Modoc tribe, was captured along with most of his tribe, and the military sought the Attorney General's opinion as to whether the accused might be tried by military tribunal.
The Attorney General agreed that they should be tried by the military commission, although he found that. President Wilson did not use military commissions during World War I to try individuals for war crimes committed within the territory of the United States. Military authorities sought to try Pable Waberski, a Russian national sent by the Germans to "blow things up in the United States," by military commission. Waberski was arrested upon crossing the border from Mexico into the United States and charged with "lurking as a spy" under article 82 of the Articles of War.
The Attorney General cited Ex Parte Milligan for the proposition that offenses committed outside of the field of military operations and by a person not a member of the military where regular civilian courts were functioning were not subject to the jurisdiction of a military tribunal.
The Attorney General therefore found that the words "or elsewhere" in Article 82 of the Articles of War were not constitutional. According to the Attorney General, Waberski, therefore, was not a spy according to the laws of war and, if guilty of any criminal offense, was triable only by the regular civilian criminal courts.
It seemed plain to the Attorney General that "Congress can not constitutionally confer jurisdiction upon a military court to try and sentence any man not a member of the military forces and not subject to the jurisdiction of such court under the laws of war or martial law.
In , Congress reenacted Article of War 15 with the addition of the wording "by statute or" before the words "by the law of war. The post-World War II response to war crimes included both national and international military tribunals.
While the Nuremberg war crimes tribunal was the most visible venue in the European theater, the number of national military tribunals far exceeded the number of trials conducted in the international tribunals. The Supreme Court confirmed the authority of the President, under his power as Commander in Chief of the Armed Forces and as delegated to him by Congress to try accused war criminals in occupied territories even though hostilities had ceased.
However, the Court declined to review the merits of the case or the sufficiency of evidence. The Supreme Court disagreed, noting he had been properly charged for his breach of duty by failing to control the operations of the members of his command, permitting them to commit the specified atrocities. General Yamashita also argued that he was entitled to a trial using the same procedures as would be applied in courts martial, according to article 63 of the Geneva Convention of Less established was the authority to try enemy saboteurs caught within the territory of the United States during war.
After eight Nazi saboteurs were caught by the Coast Guard, the President issued a proclamation that all such enemy saboteurs would be tried by military commission. In the case of Ex Parte Quirin , the Supreme Court denied their writs of habeas corpus , holding that trial by such a commission did not offend the Constitution and was authorized by statute.
Despite the fact that the civil courts were open and functioning normally, the Court held that the charge made out a valid allegation of an offense against the law of war for which the President was authorized to order trial by a military commission.
The Court declined to apply the language of the Articles of War to determine whether the procedures comported with the statute, but the Justices were unable to agree whether Congress had not meant to apply the Articles of War to military commissions or whether the Articles could be interpreted to support the procedures used.
The Supreme Court has issued several more recent opinions limiting the authority of military courts-martial to persons reached pursuant to constitutional powers to regulate the armed forces. The validity of any military commissions that might be convened pursuant to the President's Military Order of November 13, , therefore, will likely depend in large part on whether the defendants are legitimately classified as "enemy belligerents" and "unlawful combatants," or whether they are merely alien civilians.
Perhaps the most obvious difference is that war had been formally declared by Congress against foreign states. It should be remembered that the law of war has undergone significant changes since the Quirin case was decided, most notably with the Geneva Conventions.
While the importance of a formal declaration of war has faded since World War II, the law regarding the treatment of enemy civilians and combatants has progressed significantly. On that same day, the President issued a Military Order appointing a commission of seven general officers to try the named defendants for "offenses against the law of war and the Articles of War. Proclamation does not mention Congress' declaration of war against Germany.
The findings state simply that the safety of the United States demands that all enemies who enter U. The "invasion" language appears to be borrowed from the Alien Enemy Act, which states that during declared war between the United States and any foreign nation or government, or when an invasion is perpetrated by any foreign nation or government, and the President makes a proclamation of the event, the President may "direct the conduct to be observed, on the part of the United States toward the aliens who become On the other hand, a review of contemporaneous Presidential proclamations shows that President Roosevelt ordinarily cited specific statutory authority to support actions taken.
President Bush's Military Order of November 13 relies in large part on the congressional authorization to use force, which gives the President the authority to. The resolution does not address military tribunals explicitly, but could be interpreted as a broad authorization to exercise the President's power as Commander in Chief of the Armed Forces to prosecute an armed conflict. Since the current armed conflict does not involve a hostile state as such, the Act is probably not applicable nor very practical, since it would only allow the President to direct the treatment of "natives, citizens, denizens or subjects" of the hostile state.
While the proclamation defined the acts subject to prosecution by military tribunal, the new order defines a class of non-citizens whose members are subject to military trial upon the President's determination. The President must first determine that the person is or ever has been associated with terrorist acts or organizations, and that it is in the interest of national security to subject that person to the order. The President has complete discretion once those determinations are made.
Alien terrorists and violators of the law of war might not be subject to the order; citizen terrorists and war criminals are never subject to the order.
Proclamation pertained to "subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation" who are accused of certain offenses. Thus, U. The M. It should be noted that aliens, even those lawfully admitted to the country, do not necessarily enjoy the same constitutional rights as citizens with regard to freedom from unreasonable seizures of their persons.
During time of war, aliens who are citizens of hostile nations may be summarily detained and deported, and their property may be confiscated under the Alien Enemy Act. Even during times of peace, nonimmigrant aliens may be subjected to different treatment based on their nationality. In criminal proceedings, such aliens receive full due process under the Constitution. Whether certain non-enemy aliens may be subjected to criminal punishment or detained indefinitely for their suspected association with terrorist groups is uncertain.
Military commissions trying enemy belligerents for war crimes apply directly the international law of war, without recourse to domestic criminal statutes unless such statutes are declaratory of international law.
Proclamation limited the predicate offenses to entering the United States surreptitiously during war and "committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war. The eight saboteurs were charged with violations of the law of war and articles 81 and 82 of the Articles of War, as well as conspiracy to commit the foregoing.
President Bush's M. While the President's authority to try as saboteurs those responsible for the September 11 attacks appears to be supported by precedent, the M. The order allows the President to subject a non-citizen to trial by military tribunal if he determines that person is or was a member of al Qaida or committed, participated, aided and abetted, or conspired in any terrorist act, even those unrelated to al Qaida's campaign of terror against the United States.
The order appears to apply to any act of terrorism during the "relevant time" and anywhere in the world, so long as damage or injury to United States persons was intended or caused. The order may also include persons who are protected under the Geneva Conventions and are entitled to due process in accordance with international law. A court could construe the order as incorporating those standards in order to avoid conflict with U.
Section 4 of the order provides that "[a]ny individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission This language could be construed as impliedly limiting the offenses to those validly triable by military commission pursuant to 10 U. Such an interpretation would lead to the conclusion that the language in section 2 confines the offenses triable to only those war crimes that are committed by non-citizens who fit the definition in section 2.
In other words, the offenses in section 2 are not necessarily the offenses for which the defendant will be tried, but rather, are to be used by the President to determine whether an individual may be subject the order.
Violations of the law of war by others could still be tried by military commission, but such a commission need not comply with the M. If the order is interpreted to be consistent with the congressional authorization for the use of force and 10 U. Therefore, the language "at the relevant time" in Section 2 a 1 should probably be construed to mean during and related to the present armed conflict with terrorist forces emanating from Afghanistan.
The President's order could be construed to authorize detention of persons for violations of statutes not expressly triable by military commission, based solely on a determination that the accused belongs to the class of persons subject to the order.
Some language in the order could be construed to authorize detention of such persons even though they are not charged with any crime at all. The authority to detain suspected war criminals is arguably implicit in the power to authorize their trial by military commission.
Unless the authority is an inherent power of the Executive, it must flow either from statute or from the law of war. Although the language of the order could be construed to allow the indefinite detention of persons subject to the order without any charge, an interpretation that incorporates the authority it cites would lead to a different conclusion.
The order could not consistently with 10 U. The law of war does not permit punishment of enemy civilians, non-combatants, or combatants even unlawful ones for crimes for which they bear no individual responsibility.
It might be argued that Congress implicitly allows the President to detain non-citizens without explicit statutory authority, because the President is expressly prohibited by statute from detaining citizens except in accordance with statute. The interpretation of international law regarding responsibility for the acts of others through indirect participation may be necessary to justify detention of any alien suspected of conspiring with or aiding terrorists in ways that fall short of violating the law of war as an unlawful belligerent.
A feature of the November 13 M. Section 7b 2 ii-iii. To the extent that the order would affect the jurisdiction of state and federal courts over crimes, especially those not triable by military tribunal under statute or the common law of war, it may be judged to be overbroad.
Congress' acknowledgment of concurrent jurisdiction over certain crimes to courts martial and military commissions does not imply that the President has the power to create exclusive jurisdiction in the military tribunals for offenses that might by statute be tried in another court.
The President would not seem to have the constitutional authority to regulate the jurisdiction of courts or convene inferior tribunals unless so authorized by act of Congress. Article 21 of the UCMJ recognizes the military commissions' jurisdiction to try only "offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
If a court agrees to hear a petitioner's habeas corpus challenge to a conviction by military commission, it will not likely order the prisoner released or set aside the verdict "without the clear conviction that [the detention and trial] are in conflict with the Constitution or laws of Congress constitutionally enacted.
The Bush M. While the language would have no internationally recognized effect on the jurisdiction of foreign courts or international tribunals, it could be interpreted to revoke rights detainees would have under international law, including treaties to which the United States is a party. This authority may be further delegated to a field commander or any other commander with the power to convene a general court-martial. While the President may set the rules of procedure and evidence for military tribunals and need only apply "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district court" where he considers it practicable to do so, he may not apply rules contrary to or inconsistent with the UCMJ.
Procedural rules and evidentiary rules are prescribed by the President and may differ among commissions. Due Process -- Search for an International Standard. Although there may be little judicial review available to persons convicted by U. There is some historical precedent from which an international norm regarding procedural rights for accused war criminals might be derived. The Nuremberg Tribunals provide a good starting point, as further refined by the International Criminal Tribunals for Yugoslavia and Rwanda.
The evidentiary rules used at Nuremberg and adopted by the Tokyo tribunals were designed to be non-technical, allowing the expeditious admission of "all evidence [the Tribunal] deems to have probative value. Protocol I to the Geneva Convention provides, in article 75, a list of basic guarantees that may be viewed as a baseline for an international standard of due process:. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria.
Each Party shall respect the person, honor, convictions and religious practices of all such persons. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken.
Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:.
Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.
In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:. No provision of this Article may be construed as limiting or infringing any other more favorable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1. Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.
Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred. WHEREAS the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage or other hostile or warlike acts, should be promptly tried in accordance with the law of war;.
The defense counsel shall be Colonel Cassius M. Dowell and Colonel Kenneth Royall. The Military Commission shall meet in Washington, D.
The Commission shall have power to and shall, as occasion requires, make such rules for the conduct of the proceeding, consistent with the powers of military commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. The concurrence of at least two-thirds of the members of the Commission present shall be necessary for a conviction or sentence.
The record of the trial, including any judgment or sentence, shall be transmitted directly to me for my action thereon. All persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals.
The commanding generals of the several service and defense commands in the continental United States and Alaska, under the supervision of the Secretary of War, are hereby empowered to appoint military commissions for the trial of such persons.
Each military commission so established for the trial of such persons shall have power to make and shall make, as occasion requires, such rules for the conduct of its proceedings, consistent with the powers of military commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it: Provided, that. See Appendix. See United States v. Rahman, F. The perpetrators of the embassy bombings in Africa were prosecuted for murder and other charges in federal court.
Bin Laden, 92 F. Richard J. Crona and Niel A. City U. See In re Yamashita, U. The commander also has the option of detaining offenders until they can be delivered to civil authorities for trial.
See Gallagher v. United States, F. Enemy aliens in the territory of a party to the conflict who are charged with offenses must be treated in accordance with GC IV art. See Handbook, supra note? Defendants convicted under criminal proceedings are estopped from denying responsibility in any subsequent civil suit. Under current law, it is unclear whether a conviction by military commission could be invoked in this way.
Transnat'l L. See G. Meyer, ed. J Int'l L. Meyer ed. Int'l L. See Documents, supra note? United States, in which the International Court of Justice held the activities of the Nicaraguan "contras" could be attributed to the United States government only if it could be proved that the United States exercised effective control over the contras "in all fields.
SCOR, U. Shell Oil Co. Pan Am. World Airways, Inc. Aetna Cas. See supra notes Michael A. Eisentrager, U. See Civilians in War supra note 26, at See Maj.
Jan E. Law , Stat.
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