When justice goes to war: prosecuting terrorists before military commissions.

• Author: Orentlicher, Diane F.

1. INTRODUCTION

   The terrorists attacks of September 11, 2001 triggered an intense debate that continues to the present day: were they monstrous crimes--or acts of war? Should the U.S. response be shaped by a military or criminal justice paradigm? Framed this way, the debate poses a classic false dichotomy. The international community has strongly supported the United States in its claim that the September 11 attacks constituted an armed attack justifying military action against the Al Qaeda network and its Taliban sponsors in Afghanistan. At the same time, other countries are working hand in hand with U.S. law enforcement agencies in a criminal investigation of global sweep.

   But if crimes of terrorism can also be acts of war, it is a mistake to conflate the two. Presidents Bush's November 13, 2001 Military Order authorizing military commissions to prosecute suspected terrorists does just that, treating virtually any foreign national whom the President suspects of terrorist-related activity as an enemy belligerent, regardless of whether the United States is engaged in armed conflict. In doing so, the Military Order exceeds the President's constitutional authority to establish military commissions and imperils core constitutional values.

   Even when legally permissible, military commissions are generally an unwise choice among the options available for trying those believed to be responsible for the attacks of September 11 and other crimes of terrorism. Far better to try them before federal courts, as the United States has successfully done as recently as this year in connection with two other horrific crimes committed by members of Al Qaeda--the 1998 terrorist attacks on U.S. embassies in Kenya and Tanzania.

2. THE LEGALITY OF THE MILITARY ORDER

   A fundamental feature of the Military Order is that it invokes presidential war powers to support the prosecution of suspected terrorists before military commissions. Citing the President's constitutional authority as Commander in Chief of the armed forces, (1) the Order provides that the President may order certain individuals to be detained by the Secretary of Defense and to be prosecuted exclusively before military commissions "for violations of the laws of war and other applicable laws by military tribunals." (2) But in a legal and conceptual non-sequitur, the Order defines its field of application in terms of individuals whom the President suspects of participation in international terrorism, a term the Order nowhere defines, against the United States. (3) Thus the President seeks to detain suspected terrorists on the basis of his authority to prosecute war criminals. Like the figures in M.C. Escher's lithograph "Verbum" that morph from frogs into birds and then fishes, the President's order shifts from one legal paradigm to another.

   For reasons we explain in the next section, this aspect of the Military Order renders much of the Order constitutionally flawed. More particularly, the Military Order exceeds the province of presidential war powers when it purports to subject civilians in the United States to trial before military commissions because they may have supported Al Qaeda operatives or other individuals suspected of participation in international terrorism. When acts of terrorism take place in peacetime, as they frequently do, they are not triable as war crimes under international law and the President cannot make them so by the stroke of a pen.

   1. Legal Authority for Military Commissions

      The principal federal law cited in support of the Military Order contemplates the possibility of convening military commissions "with respect to offenders or offenses that by statute or by the law of war may be tried by military commission." (4) In U.S. law and practice, military commissions, courts, and tribunals have four distinct types of jurisdiction, of which only two are relevant here--"martial law" and "law of war" jurisdiction. (5)

      Although the scope of martial law jurisdiction is contested, it generally applies when the President directs the military to exercise judicial authority in parts of the country where the civilian court system is no longer functioning due to war, insurrection, or a comparable disaster. The Military Order is carefully scored with this theme, asserting, for example, that future terrorist attacks "may place at risk the continuity of the operations of the United States government." (6)

      But the leading case on martial law jurisdiction, Ex parte Milligan, (7) makes clear that this risk would not justify the exercise of military jurisdiction over U.S. citizens, and indeed the Military Order explicitly applies only to non-citizens. (8) In Milligan, the Supreme Court held unconstitutional the trial of a citizen of Indiana by a military commission convened in Indianapolis during the Civil War. In the words of the Court majority, military jurisdiction that is founded on the "laws and usages of war ... can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed," (9) unless the citizens are members of the armed forces.

      The Court recognized that there are circumstances in which martial rule can be imposed, but the contemporary threat of terrorism does not meet the Court's stringent test:

      If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no...