Detaining Combatants by Law or by Order? The Rule of Lawmaking in the War on Terrorists

• Author: Peter Raven-Hansen
• Position: Senior Associate Dean for Academic Affairs and Glen Earl Weston Research Professor of Law
• Pages: 831-850

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Senior Associate Dean for Academic Affairs and Glen Earl Weston Research Professor of Law, George Washington University Law School.

On November 13, 2001, President George W. Bush sent tremors through the United States legal establishment by issuing an order authorizing military detention and trial by military commission of individuals whom the President believes to be members of Al Qaeda, international terrorists, or persons who have aided, abetted, or harbored such terrorists.¹ The November 13 Order contemplates detention without criminal indictment or any charges of wrongdoing, and trial by military commission without many of the protections afforded in criminal trials by the Fourth, Fifth, and Sixth Amendments (including trial by jury, open hearings, confrontation, and a neutral magistrate), and without any review by a civilian court. Since the November 13 Order appeared to create a parallel military universe in which individuals could be detained and tried inside the United States but outside its criminal justice system, and arguably outside the Constitution, it was greeted with alarm by civil libertarians as an assault on the rule of law.²

But the November 13 Order and its progeny challenge the rule of law not only by asserting rules for the detention and trial of alleged terrorists. Broadly conceived, the rule of law embodies not only rules of law, but also how such rules are made, what might be called the rule of lawmaking.³ The form of the November 13 Order (styled a Page 8321 "Military Order"), the way it was promulgated (without prior notice, or opportunity for legislative or public deliberation), and the procedures it spawned (by the subsequent promulgation of "Military Commission Orders" and "Instructions") all posed challenges to the rule of lawmaking. Even if the November 13 Order's rules for military detention and trial are lawful,⁴ a serious question remains whether any government that operates under the rule of law should make and declare such rules by military order, rather than by laws that are publicly deliberated, transparent, published, and judicially reviewable.⁵

In this essay, I assert that ours should not. Further, I suggest that the war on terrorism provides no reason to depart from the conventional rule of lawmaking-;the procedures a government under the rule of law conventionally follows in making law. Instead, I argue that the exigencies of that war especially require observance of the rule of lawmaking when the executive asserts liberty-;and life-threatening military powers at home.

Part I of this essay traces the procedural history of the Military Order and other closely related assertions of military authority, building on the excellent history compiled by Eugene Fidell through the summer of 2003.⁶ Part II briefly speculates how the November 13 Military Order, Military Commission Orders, and Military Commission Instructions might have been promulgated had the Administrative Procedure Act (APA) applied. Finally, Part III addresses two rebuttals to this line of thought: that military orders and their progeny are exempt from the APA procedures and that, in Page 833 any case, normal lawmaking procedures are impracticable in the national security emergency created by the 9/11 attacks.

I The Making Of The Military Order And Its Progeny

A The November 13, 2001, Order

The November 13 Military Order was issued without prior notice or opportunity for public comment. The internal administrative process for its issuance is still unknown, but reportedly two former senior officials in the Department of Justice first suggested that military commissions be used to try suspected terrorists.⁷ The Office of Legal Counsel was tasked with advising about the legality of this option, although its opinion has not yet been publicly disclosed.⁸ It would have been logical to have given military lawyers the same charge, if for no other reason than to take advantage of their extensive firsthand experience with courts-martial and to help them define the role that they would presumably be required to play under the November 13 Order. But after the Order was promulgated, media reports stated that their advice had either gone unsolicited or ignored in its drafting.⁹ In any case, it is also likely, based on the procedures used in formulating subsequent legally controversial Administration counter-terrorist initiatives, that any legal advice from the Office of Legal Counsel and the Department of Defense was channeled through and synthesized in the office of White House Counsel and former judge Alberto R. Gonzales.¹⁰

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As noted above, the November 13 Order drew immediate and sustained criticism from civil libertarians, the bar, and academia. In response, Judge Gonzales offered three rebuttals on behalf of the Administration.¹¹ First, he emphasized that the Order expressly applied only to non-citizens.¹² Criticism was "based on misconceptions," explained Judge Gonzales, among them presumably the misconception that the President had ordered the military to detain Americans.¹³ Moreover, it was "totally unfounded" for critics to assert that the November 13 Order would be applied to "green card holders," Judge Gonzales told a bar association meeting.¹⁴ Treating permanent resident aliens (to whom green cards are issued) like United States citizens and therefore outside the Military Order is consistent with existing national law governing surveillance and intelligence collection,¹⁵ which gives such aliens the same protections as United States citizens in recognition of their substantial and permanent connections to the United States. Yet nothing in the text of the November 13 Order exempts permanent resident aliens. The Order applies without differentiation to "any individual who is not a United States citizen" who otherwise meets its requirements.¹⁶ Thus, Judge Gonzales' explanation effectively amended the Order.

Second, Judge Gonzales emphasized that the November 13 Order applied only to "enemy war criminals," persons "chargeable with offenses against the international laws of war, like targeting civilians or hiding in civilian populations and refusing to bear arms openly."¹⁷The implication was that critics who raised the specter of military arrests and trial for ordinary crimes or for nothing at all were thus again irresponsibly wide of the mark. The November 13 Order, however, expressly declares it necessary for individuals subject to it to be tried "for violations of the laws of war and other applicable laws by military tribunals."¹⁸ Judge Gonzales' explanation, therefore, again verbally amended, or at least narrowed, the Order.

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Third, the Administration responded vigorously to criticism that the November 13 Order prohibited judicial review. The November 13 Order provides that an individual subject to it

shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.¹⁹

The peculiarly archaic formalism, "privileged to seek," appears in no current statutory provision regarding judicial review. Instead, it was drawn from a World War II order by President Franklin Roosevelt issued in response to the capture of eight German saboteurs in the United States. After he told Attorney General Francis Biddle, "I want one thing clearly understood, Francis. I won't hand them over to any United States Marshal armed with a writ of habeas corpus,"²⁰Roosevelt signed a proclamation entitled Denying Certain Enemies Access to the Courts of the United States and authorizing their trial by military commission under the laws of war.²¹ The proclamation's statement that such enemies "shall not be privileged to seek any remedy" was an unmistakable reference to the Suspension Clause of the Constitution, which speaks of "[t]he Privilege of the Writ of Habeas Corpus."²² Indeed, Biddle told Roosevelt that this language in the proclamation would have "the same practical results" as suspending the writ of habeas corpus without actually taking such action.²³ Given this lineage, President Bush's November 13 Order unmistakably purports to deny individuals subject to it the privilege of seeking the writ of habeas corpus or any other remedy "directly or indirectly" in any court.²⁴

Despite the Order's text and this lineage, however, Judge Gonzales flatly asserted that "[t]he order preserves judicial review in civilian courts."²⁵ This Orwellian assertion may have been based on Page 836 the fact that the United States Supreme Court had rejected Roosevelt's effort to head off habeas review in the saboteurs' case,²⁶and that the Bush Administration therefore anticipated that the present Supreme Court would likewise reject the November 13 Order's denial of any judicial remedy.²⁷ If so, surely a more direct textual path existed to admitting judicial review. The Administration's explanation was tantamount to asserting, "We are confident that the courts will ignore our futile effort to deny habeas just as the Supreme Court did last time."

While these "verbal amendments" cumulatively may have given some reassurance to the November 13 Order's critics, they also created a sizable gap between what the Order said and what the Administration claimed it meant, calling to mind the (slightly...