Life, liberty, and the pursuit of terrorists: an in-depth analysis of the government's right to classify United States citizens suspected of terrorism as enemy combatants and try those enemy combatants by military commission.

• Author: Schaffer, Amanda

INTRODUCTION

The September 11, 2001 terrorist attacks drastically changed attitudes about personal freedom. (1) Fear that a terrorist could strike at anytime, anyplace made individuals more willing to put up with inconveniences, such as longer lines at airport security and baggage checks in subway stations. (2) This fear drove the government to implement measures that it believed would help track down terrorists and prevent future attacks. (3) One such measure, promulgated by President George W. Bush, is the Military Order of November 13, 2001: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." (4) Those subject to the order can be "detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." (5)

Section two of the order defines the non-citizens subject to the order. (6) Any non-U.S, citizen is subject to the order where:

[T]here is reason to believe that such individual, at the relevant times, is or was a member of the organization known as al Qaida; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order. This order details procedures for handling such non-citizens suspected of terrorism. (7)

While the order does not specifically give the government the right to try citizens by military commissions, (8) deeming a citizen an enemy combatant (9) gives the government the authority to try him in this manner. (10) An individual who is considered an enemy combatant can be detained for the duration of an armed conflict under the laws and customs of war, (11) not under the domestic criminal laws. (12) President Bush has declared that two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, are enemy combatants, and they are currently being held in military prisons. (13) It has not yet been determined what the fate of Hamdi and Padilla will be. (14) They could be held and not tried at all, they could be tried by military commissions, like their non-citizen colleagues, or they could be tried in criminal court. (15) This Comment will explore the government's right to treat citizens as enemy combatants and whether their trials should be by military commissions or by the non-military criminal justice system.

Part I of this Comment gives background information and explains the source of the government's right to determine enemy combatant status and to use military commissions. Part I also describes the distinctions between a military trial and a regular criminal trial and explains the status of the Hamdi and Padilla cases. Part II explains why the government wants to use military commissions to try terrorists and the advantages of these commissions over regular criminal proceedings. Additionally, Part II analyzes the distinctions between citizens and non-citizens and examines the constitutionality of declaring citizens enemy combatants. Part II also discusses how terrorists differ from other types of criminals and how those differences justify disparate treatment. Part III of this Comment proposes a solution and determines that the government does have the right to treat citizens as enemy combatants. Part III also argues that military commissions should try these enemy combatants, however, there must be a structured judicial proceeding to determine whether an individual is actually an enemy combatant. (16)

ORIGINS OF THE GOVERNMENT'S RIGHT TO USE MILITARY COMMISSIONS AND TO DETERMINE ENEMY COMBATANT STATUS

1. Prior Use of Military Commissions

   The United States has made use of military tribunals since the country's inception. (17) The government used the commissions during the Revolutionary War, the Mexican Wars, and the Civil War. (18) The Supreme Court in Ex parte Quirin and Application of Yamashita, declared that it is constitutional to try foreign belligerents in military trials. (19)

   Citizens also have been tried by military commissions in the past. (20) After the surrender and occupation of Germany and Japan in 1945, military tribunals tried U.S. citizens for ordinary criminal activity in the occupied territories. (21) The Supreme Court upheld the jurisdiction of these tribunals. (22) Additionally, in Madsen v. Kinsella, the Supreme Court upheld the jurisdiction of a military commission to try a U.S. citizen for murdering her husband, a U.S. serviceman. (23) Finally, in Quirin, the Supreme Court upheld the trial by military commission of a person presumed to be a U.S. citizen. (24)

   1. Ex parte Quirin

      In Ex Parte Quirin, German saboteurs trained to use explosives, secret writings, and other terrorist tactics landed in the United States during World War II. (25) They came ashore while it was dark, got rid of their German uniforms and changed into civilian clothing with the intent to destroy U.S. facilities that contributed to the war effort. (26) President Franklin D. Roosevelt set up military commissions to try non-citizens during wartime who were charged with committing or attempting to commit, "sabotage, espionage, hostile or warlike acts, or violations of the laws of war." (27) The Supreme Court held that these military commissions were constitutional, stating:

      [A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. (28) In Quirin, the defendants argued that their trial should be in civilian court because those courts were open and functioning and therefore not precluded from hearing their case; the Supreme Court rejected that claim. (29) The Court held:

      Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. (30) Citizenship, therefore, is not an escape from enemy combatant status or treatment.

   2. Application of Yamashita

      In Application of Yamashita, the Supreme Court again allowed the use of military tribunals to try the Japanese commander of the Philippines, General Tomoyuki Yamashita, who had massacred civilians and prisoners of war and destroyed property without cause or military necessity. (31) In Yamashita, the Court held that the military commission was lawful, despite its creation after the cessation of hostilities between the United States and Japan. (32)

      The reasoning behind Yamashita helps support the constitutionality of Congress' authorization of military commissions to remedy the terror produced by war crimes, "regardless of whether there are ongoing hostilities at the time of trial." (33) This applies to terrorism because often the acts of war that a terrorist engages in are sporadic and do not necessarily occur in one triable offense. (34)

   3. The Constitution and Other Sources of Authority

      The authority for military commissions comes mainly from Articles I and II of the Constitution. (35) Article I gives Congress the power to "provide for the common Defense" (36) and to "declare War ... and make Rules concerning Captures on Land and Water." (37) Article II gives the President "executive Power" (38) and makes him the "Commander in Chief of the Army and Navy." (39) Additionally, Congress, in Article 15 of the Articles of War, provided that "military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases." (40) Article 21 of the Uniform Code of Military Justice (which is materially identical to Article 15) provides:

      [T]he provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commission, provost court, or other military tribunals. (41) B. Differences Between a Military Trial and a Regular Criminal Trial

      A panel of military officers makes up a military tribunal and tries "both fact and law." (42) In the military proceeding, there is no right to a trial by jury. (43) Military commissions do not use the traditional rules of evidence. (44) Instead, evidence is admitted if "in the opinion of the Presiding Officer, (45) the evidence would have probative value to a reasonable person." (46) This allows the commission to hear evidence that would be inadmissible as hearsay in a non-military criminal trial. (47)

      Further, in a regular criminal court, the jury must unanimously agree to convict, whereas in a military proceeding two-thirds of the panel must agree to convict. (48)

      An additional distinction between a military trial and a regular criminal proceeding is that in a military trial the accused is not free to select whomever he wants as his attorney. (49) He can:

      [S]elect a Military Officer who is a judge advocate of any United States armed force ... [t]he [a]ccused may also retain the services of a civilian attorney of the Accused's own choosing ... provided that attorney ... has been determined to be eligible for access to information classified at the level SECRET or higher. (50) This civilian attorney will not necessarily be present at closed commission proceedings. (51) A proceeding can be deemed closed...