by John Yoo
FDR's commissions operated under his two executive orders alone. There were no regulations such as those developed by the Defense Department to define the elements of the crimes that a commission can hear. A second Defense Department regulation established rules on the admissibility of evidence, the right of cross-examination, the right against self-incrimination, proof beyond a reasonable doubt as the standard for conviction, and the right of defense counsel to examine any exculpatory evidence in the prosecution's possession. Under the Bush commissions, unlike FDR's, a unanimous vote is required to impose the death penalty.52
What concerns today's civil libertarians is that military commissions do not afford as much due process as domestic criminal trials. But the truth is that the rules of military commissions under the Bush administration are far closer to the standards governing courts-martial of American soldiers than those set out by FDR, and they recognize many more procedural rights. Current Defense Department regulations specifically detail the crimes that can be tried. FDR stated only the general prohibition of "sabotage, espionage, hostile or warlike acts, or violations of the law of war," which could be interpreted to mean a lot of things. Convictions for spying today, for instance, require four different elements--that the defendant in wartime sought to "collect certain information," convey it to the enemy, and was "lurking or acting clandestinely, while acting under false pretenses." Extensive comments explain different terms and situations that might arise, closely resembling the Model Penal Code for civilian criminal law. Civil libertarians might cavil about the details, but the Bush administration's effort goes much further than FDR's orders to protect defendants' rights.
When the Court issued its unanimous opinion in Ex Parte Quirin, it narrowed Milligan and upheld FDR's use of military commissions. Unlike Milligan, the saboteurs clearly had joined the Nazi armed forces. Chief Justice Stone's opinion found that Congress's creation of the existing courts-martial system, and the lack of any legal code specifying the laws of war, did not preclude the use of military commissions. He read the Articles of War--the precursor to today's Uniform Code of Military Justice (UCMJ)--as authorization for military commissions, but didn't reach the question of whether FDR could have created them on his own.53
In later World War II cases, the Supreme Court continued to approve of military commissions. In Ex Parte Yamashita, General MacArthur ordered a military commission to try the commanding Japanese general in the Philippines for failing to prevent his troops from committing brutal atrocities and war crimes.54 Appealing his conviction, General Yamashita sought a writ of habeas corpus from the Supreme Court, which he could because the trial was held on American territory in the Philippines. In 1946, Chief Justice Stone again rejected the challenge and found military commissions authorized by Congress in the Articles of War. In two other cases, the Supreme Court refused to step in to review the convictions of Japanese leaders by an international war crimes tribunal run by MacArthur or to review the sentences of Germans captured in China after the end of hostilities.55
The claims of senators and academics that Bush's military commissions violate the Constitution because Congress hasn't approved them have little merit. It is true that Congress has not passed a law specifically authorizing military commissions in the war on terrorism, but it never enacted one in World War II either. Instead, the Supreme Court relied on Article 15 of the Articles of War, which Congress enacted in a 1916 overhaul of the rules of military justice. Article 15 is still on the books today, and continues to authorize military commissions.56 Now part of the UCMJ, Article 15 declared that the creation of courts-martial for the trial of American servicemen for violating military rules of discipline did not "deprive military commissions...of concurrent jurisdiction with respect to offenders or offenses that...by the law of war may be tried by military commissions."57 Congress here recognized that military commissions continue to be the President's prerogative. The Supreme Court in Quirin read it as direct congressional authorization of commissions. Congress chose not to disturb Quirin when it reenacted Article 15 as part of the UCMJ.
Congress supplemented this source of approval with the AUMF--if it authorizes the detention of enemy combatants, it should also permit their trial--and with the 2005 Detainee Act, which allows an appeal to the federal appeals court in D.C. of the verdict of a military commission. If Congress never approved of commissions in the first place, why would it create a review process for them?
Even if Congress hadn't authorized military commissions in the UCMJ, President Bush would still have authority to establish them under his constitutional authority as commander in chief. Congress, of course, has its own authority to establish military courts under its constitutional authority to "define and punish...offenses against the Law of Nations" and to "make Rules for the Government and Regulation of the land and naval Forces." Article II of the Constitution grants the President "executive power" and the power of commander in chief. While Congress has sometimes authorized military commissions itself, American history affords many examples of presidents and military commanders creating them on their own.
The purpose of military commissions makes clear that they should remain within the discretion of the commander in chief. Waging war isn't limited to ordering which enemy formations to strike and which targets to bomb. It also involves setting policy on how to fight, how to detain enemy combatants, and how to sanction the enemy if it violates the rules of civilized warfare. Allowing military commanders to try and punish violators creates incentives for the enemy to follow the rules in the future and assures our own troops that war crimes will not be tolerated. As the Supreme Court recognized in Yamashita, "An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war."58 Military commissions help commanders properly restore order in the aftermath of a conflict. This can be an important way of making sure fighting does not flare up again.
Using a military commission does more than just maintain discipline. It also allows plea bargaining with enemy combatants who have valuable information. Al Qaeda members might prove more willing to talk with our intelligence officers if they can get lower sentences in exchange. Rules that guarantee a full and fair trial will make them even more willing to cooperate, and the transparent fairness of American military commission practice is extremely high by world standards, those of the enemy. One need only contrast the extensive due process in our military commissions with al Qaeda's practice of kidnapping Americans such as Daniel Pearl and beheading them on videotape.
Some critics respond that the President cannot use military commissions in the absence of a declaration of war. That claim runs counter to American history and practice. As it had in many previous wars, most recently the 1991 Persian Gulf War, Congress chose in the week after 9/11 not to declare war but instead to enact a statute authorizing the President to use "all necessary and appropriate force" against those connected to the 9/11 attacks. Congress's authorization serves the same function as a declaration of war. No court or serious war-powers scholar today believes that Congress must instead issue a declaration of war to authorize hostilities. Presidents have used military commissions in conflicts without any declaration of war, the Civil War being the most obvious example, and the Indian wars another. The declaration-of-war issue is a red herring. It ignores the fact that presidents have long used military force abroad without congressional approval of any kind.
This isn't to license an anything-goes attitude, by any means. Important limitations restrict the scope of military commissions. For one thing, their jurisdiction is limited only to war crimes. Military commissions have no constitutional authority to try Americans or non-Americans for garden-variety crimes, civil wrongs, or any other offense unrelated to war. They can hear prosecutions only for violations of the laws of war. President Bush also ex
empted American citizens, whereas previous military commissions tried everyone who violated the laws of war. In Quirin, at least one of the Nazi saboteurs was an American citizen, and recall that the Supreme Court concluded that "[c]itizenship in the United States of an enemy belligerent does not relieve him of the consequences of a belligerency which is unlawful."59
Some critics suggest that al Qaeda members cannot be subject to the jurisdiction of military commissions. Al Qaeda is not a nation, goes the logic, therefore it is not regulated by the laws of war and its members cannot commit war crimes. This is a mistaken return to the idea that only states can wage war. It would be absurd for the law to exempt al Qaeda, which has the destructive capabilities of a nation, because it is not a state. In civil wars, insurgent groups and other actors are held accountable to the rules of civilized warfare.60 If a nation commits war crimes by intentionally targeting civilians, then al Qaeda should be subject to the same rules.
Critics also claim that the procedures are fundamentally flawed because there is no provision for federal judicial review of verdicts. But an appeals process does exist. It travels up from the commission, to an appeals panel, to Defense Secretary Rumsfeld, and ultimately to the President. Military commissions have long been run entirely by the armed forces, without any civilian judicial review. The small number of military commission cases that have successfully reached the federal courts involved American citizens or took place on American soil. Bush's order authorized only military commissions that fell outside those exceptions.
The landscape changed, to some extent, when Rasul v. Bush reversed Eisentrager.61 But the 2005 Detainee Treatment Act overruled Rasul and created only a limited right to appeal a military commission verdict to the appeals court in Washington, D.C.62 It allows reversal only if military commissions disobey Defense Department regulations.
The final argument of opponents of military commissions is that they violate international law, specifically the Geneva Conventions, which require that prisoners of war must be tried "by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power."63 Some law professors regard the use of military commissions as itself a war crime.64 But the Geneva Conventions do not apply to al Qaeda or the Taliban, who are illegal enemy combatants.65
Commissions balance fair and open justice with the need to fight war successfully. Critics object that they are closed to the public and that one can choose only U.S. citizens with special security clearances as lawyers.66 Any aspect of military commissions that deviates from the classic criminal trial of American citizens in peacetime, the critics find objectionable. Their solution? More Moussaoui trials.
Moussaoui's trial showed clearly that civilian courts with juries, maximum civil rights protections, and the luxury of time cannot handle enemy combatants in wartime. America's traditional method--military commissions--can. Military commissions have deep roots in American history and constitutional practice. The President has ordered them and Congress has recognized them. Their main problems have been bureaucratic delay in setting them up and interference from the federal judges who have blocked them. Until the federal courts step out of the picture, many detainees will still lack the definite sentences that the administration's critics want them to have, and the United States will have to continue to hold them--and this may prove to be for a very long time.
EPILOGUE
Five years ago, al Qaeda struck the United States an unexpected, devastating blow. This book tells the story of the policy and legal decisions made in response. The public mostly became aware of government actions piecemeal, often after unauthorized leaks to the press. To an outside observer, the strategies and tactics in America's war on terrorism can sometimes seem ad hoc, even made up on the fly.
To those who served in the government through 9/11 and its aftermath, these were the right decisions. We are at war. After September 11, the American people understood this quite well. We responded with all the diplomatic and military tools we had at our disposal. I think the costs were worth the greater security these policies brought us.
In a sense, the success of the administration's policies has proved its worst enemy. We have crippled al Qaeda, with dozens of its leaders and hundreds of operatives captured or killed, financial and communications networks disrupted, and new attacks averted. To some, we have achieved victory. Five years without a terrorist attack has critics questioning whether the United States needs preventive detention, targeted killing, the Patriot Act, coercive interrogation, and military commissions. The public only sees the after effects: the crater in Yemen from the missile strike, or the numbers of FISA wiretaps, or the allegations of harshness at Guantanamo Bay. Naysayers can always claim we would have been just as safe without taking these precautionary actions. We never see the deaths that were prevented.
Because of our aggressive policies, al Qaeda is no longer the threat it once was. Thousands of its operatives have been killed, about two-thirds of its pre-9/11 leadership has been eliminated, and it no longer has safe havens in Afghanistan where it can plan and train for attacks. But al Qaeda is still dangerous. It is resilient, ideologically driven, and draws comfort from the well of Arab discontent and anti-Americanism that exists in the Middle East.
The war against al Qaeda has been jarring at times because the rules of war are unfamiliar. The criminal justice system is more widely understood, and it provides more certainties, but it is not suitable to the realities of this new kind of war. At some point, the threat from al Qaeda will recede. We will kill or capture sufficient numbers of al Qaeda's leaders and operatives so that they can no longer leverage their organization to carry out significant attacks on the United States. Any violence committed by remaining al Qaeda members will be sporadic, posing limited threats to American lives, and we will be safe to use the criminal justice system once again. Are we at that point now? Perhaps the debate sparked by the Supreme Court's recent decisions on due process for enemy detainees will provide further clarity at this stage, from Congress.
What is the way forward? Though some of the policies discussed in this book have recently been blocked by the courts, many remain in place today. That doesn't mean they couldn't use reform or adjustment, particularly as time goes on and we gain confidence that we have eliminated specific threats. Unfortunately, the major proposals for policy change do not come to grips with the fundamental challenges posed by terrorism. Some urge a return to the criminal justice system, or the creation of a war-crime hybrid system, while others focus on changing the organization of the government agencies involved with security and terrorism--"moving the boxes in the org chart around," as Michael Chertoff has put it.
Some commentators and academics suggest that military methods have become unnecessary because the criminal justice system can be modified to handle terrorism. So long as defense lawyers are American citizens with security clearances, classified evidence is held in closed session, and captured enemy combatants are withheld as live witnesses, we could probably modify our criminal courts to accommodate national security matters. Should we? If we do, then the civilian courts may start to look the same as the military commission system. Instead of insisting on using our criminal system for terrorism, civil libertarians might think long and hard about what this might do to the civilian courts.
Even if we could modify the criminal justice system to meet the challenges of fighting terrorism, important differences would still remain between law enforcement and the military. This is most clear with the use of force. Our peacetime legal system does not permit the use of force in any situation other than against an imminent threat to life or public safety. Outside of war, we would be required to wait until an al Qaeda attack was imminent before we could resort to deadly force in self-defense.
Critics usually look to Congress as the main engine for the development of terrorism policy. Critics claim that Bush has violated the law, or acted as if he were above the law. They place all of their hopes in Congress
. If only Congress would pass a law regulating terrorism policy, all would be right with the world. There are reasons to doubt whether any new laws would make a difference. Within a week of September 11, Congress enacted into law the broadest authorization possible for the use of force against anyone connected with the attacks, or anyone who supported or harbored those responsible. Congress's virtually unanimous support for military action did not stop human rights lawyers or activists from challenging every aspect of the war on terrorism. When Congress overruled the Supreme Court's Rasul decision, and supported the administration, the media and academics virtually ignored it. Opposition to the administration's policies would have occurred whether Congress had voted to approve the war on terrorism or not.
Congressional support for the war is a fact of life. There may be no grand statute that defines an enemy combatant and every step of the Defense Department's review process, but neither the detention facility at Guantanamo Bay nor military commissions could exist without congressional funding. No statute defines assassinations or sets out standards for targeted killings, but only Congress can authorize and pay for the CIA and armed forces' use of unmanned drones fitted with Hellfire missiles. Congress conducts oversight of the administration's activities in the war on terrorism, and the intelligence committees are regularly briefed on covert activities. Congress is on the job, and it has spoken. There has been no monarchic seizure of power by the President.
Wartime naturally enhances presidential power. Presidential initiative and direction of policy in war runs counter to popular notions of ordinary peacetime patterns of governance. We are used to a peacetime system in which Congress enacts laws, the President enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch. Our constitution's framers designed the executive branch to respond swiftly to events, carry out policies with unity and energy, and gather and make use of expertise and intelligence. Congress's size, disorganization, and unwillingness to take political risks naturally keep it in a secondary role in foreign affairs and national security.