Military commissions and terrorism.

• Author: Stoelting, David

President George W. Bush's Military Order of November 13, 2001, issued just thirty-two days after the terrorist atrocities of September 11, 2001, pointedly adopted the language of war and, almost by fiat, declared that terrorism was a war crime. As a result, under the Military Order the fight against terrorism became a "state of armed conflict" (1) and terrorist acts became "violations of the laws of war...." (2)

These designations abruptly erased long-held distinctions between terrorism and war crimes and represented a signal departure from pre-9/11 practice. More specifically, the Military Order has provided the theoretical underpinning for allowing foreign terrorists to be subject to trial by American military commissions. The consequence has been the largest expansion of the jurisdiction of military commissions in American history. (3)

The novelty of using military commissions to try terrorists is apparent in several respects. First, unlike every other military commission ever created by the United States government, the Military Order, which is focused almost exclusively on terrorism, is designed to create tribunals not for war criminals but for terrorists. Next, terrorism and war crimes had been defined by different legal regimes. The Order, however, collapses their definitions and blurs longstanding distinctions. Finally, military commissions have never before been used to try terrorists. As a long line of U.S. Supreme Court and Attorney General Opinions demonstrate, military commissions had been restricted to members of an organized military force acting as an agent of a state or government.

Using military commissions to try terrorists, then, represents a stark departure previous practice and policy. As a result, because the commissions envisaged by the Order at last appear to be nearing realization (almost two years after the Order's issuance), the Supreme Court may have to decide the legality of this approach. And while the government will emphasize its duty to protect national security in a time of "war," it should at least be recognized that permitting military commissions to try terrorists is a radically different approach. Indeed, supporters of the Military Order could more credibly argue that the exigencies of September 11th led to a cataclysmic transformation of international law legitimizing what had previously been illegitimate. Better to acknowledge an arguably necessary shift in the legal landscape than to assert a dubious consistency.

1. THE MILITARY ORDER CREATES A FORUM FOR TRYING TERRORISTS

   In the immediate aftermath of September 11th, the rhetorical and symbolic purposes of the Military Order were paramount. To begin with, the Order departed starkly from prior orders creating military commissions by focusing unambiguously on terrorism rather than violations of the laws of war. This is apparent from the face of the Order, which repeatedly mentions terrorism and terrorists and clearly is directed at persons accused of terrorist acts rather than war crimes. In the "Findings" section, for example, the Order states that "international terrorists" have committed "grave acts of terrorism" and that there is a risk of "further terrorist attacks." (4) Individuals "involved in international terrorism" may "undertake further terrorist attacks." (5) Military commissions are needed due to "the nature of international terrorism" for the "prevention of terrorist attacks." (6)

   The Military Order, therefore, introduced and formalized the militarization of America's response to terrorism. It repudiated the idea that terrorism is strictly a criminal justice problem and, more importantly, established the legal basis for a long-term military approach to the problem of terrorism. By embracing the notion that terrorist acts are war crimes, the Military Order provided a conceptual context that sought to legitimate overwhelming force in response. Moreover, the Order delivered this message of resolve at the outset of the military response to terrorism. As a result, those suspected of terrorism during the length of this unending war are subject to what no foreign terrorist has ever faced before: an American military tribunal staffed by U.S. soldiers as judges, no habeas corpus option and no right of appeal to civilian courts.

   The text of the Military Order demonstrates its single-minded emphasis on terrorists rather than war criminals. Section 2 of the Order, describing the persons eligible for trial by military commissions, does not state that war criminals are to be subject to the commissions. Instead, the persons to be tried pursuant to the Military Order are any individual who "is or was a member of the organization known as al Qaida" and any individual who "has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore" designed to harm "the United States, its citizens, national security, foreign policy, or economy." (7) The Military Order also permits trial by military commission of any individual who has "knowingly harbored" current and former members of al Qaida or other persons that have engaged in, aided or abetted of conspired to commit terrorism. (8)

   The Military Order's ideological purposes were further evidenced by the fact that at the time of its promulgation there was no apparent intent to actually create commissions. Although various rules and regulations regarding the operation of the commissions have been released in the twenty months after the issuance of the Order, there has been no urgency to try persons by the commissions authorized by the Order. This is unusual. Other Presidential orders resulted in the formation of panels within a short period of time. For example, the German saboteurs prosecuted pursuant to President Roosevelt's order in 1942 were already in custody when the order was issued. (9) Within a two-month period, the saboteurs were captured, the military commission was ordered and completed its proceedings, the U.S. Supreme Court heard oral arguments and upheld the legality of the trial, and the Germans were executed. In contrast, almost two years after the Order, only preliminary steps toward actually using the commissions have been taken, further suggesting that the rhetorical purposes of the...