Military Commissions: Old Laws for New Wars

AuthorWilliam K. Lietzau
PositionLieutenant Colonel, United States Marine Corps
Pages255-288
XI
Military Commissions:
Old Laws for New Wars
William K. Lietzau*
Introduction
ThePresident's exercise of his constitutional authority to direct the Secretary
ofDefense to detain enemy combatants and to convene military tribunals to
prosecute war crimes and other crimes triable by military commission1is both a
lawful and practical response to the ascendance of terrorism. Though unpredicted
by many,2and initially challenged as anachronistic, the exercise of jurisdiction by
military commissions comports both with domestic and international law and can
serve to advance the values that long have animated US national security strategy.
The apocalyptic effects of al Qaeda's attacks of September 11, 2001 the deaths
of thousands of innocent civilians and the immutable gash in the skyline of our
most populous city3were pale harbingers of the significant changes to be
wrought across the international and domestic landscapes when the United States
initiated the Global War on Terrorism in response. That war, in turn, has intro-
duced legal challenges that perhaps represent the quintessential example of the en-
during impact of the attacks and the US response thereto. That the President
should instigate ametamorphosis of old law to address the unique challenges of
this new war was not surprising. History teaches that changes in the law are often
*Lieutenant Colonel, United States Marine Corps. The remarks contained herein are personal
reflections and do not necessarily represent the position of the US Marine Corps or the
Department of Defense.
Military Commissions: Old Lawsfor New Wars
significant consequences of war. So too, this war on terrorism has challenged and
continues to challenge the limits ofthe constitutive tenets that have defined our in-
ternational and domestic orders throughout the last half of the 20th century. Afail-
ure to participate thoughtfully and deliberately in fashioning the legal norms that
are being developednorms that will guide the global community for the next
centurywould constitute amissed opportunity of substantial moment.
US post-9/11 counterterrorist activities, particularly in the legal realm, have
been the subject of much criticism. The decision to use military commissions to try
alleged terrorists is anotable example. US efforts to cultivate those changes in ex-
tant law necessary to prosecute the war on terror frequently have appeared uncoor-
dinated and ill-composed in immediate application. But this awkwardness is most
accurately attributed to the fact that the progression in law required to deal with
terrorism highlights both the confluence of what might previously have been
viewed as disparate legal regimeslaw enforcement and warand the lacunae
that reveal themselves in our attempts to merge the boundaries of these separate
disciplines.
Paradigm Shift
To comprehend fully the issues raised by the decision to use military commissions,
one must first recognize the significant strategic and operational shift associated
with the 9/11 response. Historically, the strategy ofthe United States in responding
to terrorism was grounded solely in law enforcement. 4It was widely recognized
and accepted that the magnitude of the 9/11 attacks, coupled with their penetra-
tion of the American homeland, rose beyond mere criminal conduct, amounting
instead to an act of war.5The almost exclusive law enforcement responses to past
terrorist attacks would not suffice; the use of military force had become not only a
legitimate option, but also anecessity. The US Congress recognized the changed
nature of the terrorist threat when, on September 14th, it enacted ajoint resolution
authorizing the President to use "all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001, and harbored
such organizations or persons, in order to prevent any future acts of international
terrorism against the United States."6
The military response to the events of September 11th marked the most signifi-
cant use of military force in response to terrorist acts to datewhat had for years
been viewed and addressed as acriminal act now had started awar. This view was not
limited to domestic observers. The use ofmilitary force in Afghanistan in response to
9/1 1was well received both internationally and domestically.7On September 12th,
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William K. Lietzau
the Security Council passed aresolution expressly recognizing the right of the
United States to respond in self-defense.8Days later, the North Atlantic Treaty
Organization (NATO) took the unprecedented step of passing aresolution citing
Article 5of the NATO Charter.9Separate resolutions of the ANZUS and Rio Pact
nations similarly condemned the 9/11 attacks as attacks on their respective collec-
tive memberships. 10
Though the need to respond to terrorism via the armed conflict model was
manifestprimarily as apreventive measureit was undoubtedly attended by
punitive aspects traditionally associated with law enforcement concepts. Similarly,
in crafting the associated new legal paradigm, the United States incorporated ele-
ments of both law enforcement and warmaking. This was no mere academic
choice, but one required by the circumstances at hand. Oliver Wendell Holmes's
observation is appropriately recollected, "the life of the law has not been logic, but
experience." 11 We were and remain clearly at war, but the stated objective of that
war was and is, at least in part, to bring wrongdoers to justice. 12
In theory, an act subordinate to and lawfully consistent with the decision to en-
gage in armed conflict should enjoy support commensurate with that attending the
core decision itself. 13 But that has not been the case. 14 The armed conflict model for
addressing terrorism, most prominently embodied in Operation Enduring Free-
dom, 15 was accompanied by anumber of subordinate actions that did not enjoy
such asanguine reaction within the international community. Issues related to the
detention of alleged terrorists at Guantanamo Naval Base, Cuba, 16 and the pro-
posed plan for prosecuting alleged terrorists before military tribunals 17 are most
conspicuous among those that have been the object of international condemna-
tion. Yet, these decisions are anatural outgrowth of the paradigm shift from one of
law enforcement to one of war. Legally and logically, military tribunals are anatu-
ral extension of the President's authority as Commander-in-Chief of the armed
forces; they are not afunction of the United States' judicial authority as is so often
claimed. 18 Domestic and international criticisms of the President's decisions have
been cloaked in sweeping allegations of illegality. The apprehension animating
those claims, however, is most frequently amisperception of an abuse of judicial
authority or misidentification of policy concerns generated by the imperfect
merger of the two relevant bodies of law. 19
Executive versus Judicial Authority
The first misperception is the most widespread and also the most easily defeated.
Much of this criticism is simply the natural consequence of continuing to address
discrete acts related to the war on terrorism as if they fell squarely and solely within
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