The horrific attacks of September 11th have made it painfullyclear that a technologically sophisticated band of medievalbarbarians have declared war on America. In my view, thesebarbarians hold a nihilist philosophy and have nothing but contemptfor human life. They attacked America because our nation is seen asa symbol for respect for individual rights. America is a uniquenation in all of world history because it is founded upon aConstitution that is designed to acknowledge and enhance theimportance and dignity of human beings.
We must respond to this new threat without losing sight of whatwe are fighting for. Our troops are not simply defending theproperty and occupants of some geographical location. They aredefending the fundamental American idea that individuals have theright to life, liberty, and the pursuit of happiness. Ourgovernment must fight any foreign or domestic enemy who woulddestroy the rights of our people.
That said, I am disturbed by some of the actions taken by ourgovernment in response to the September 11th attacks. And Isincerely thank you for your invitation to come here and share myconcerns with you.
II. Bush Order Violates Separation ofPowers
On November 13, 2001 President George Bush signed an executiveorder with respect to the detention, treatment, and trial ofpersons accused of terrorist activities. The president declared anational emergency and claimed that Article II of the Constitutionand the recent Joint Resolution by Congress Authorizing the Use ofMilitary Force (Public Law 107-40) empowered him to issue theorder.
In my view, the president cannot rely upon the Joint Resolutionas a legal justification for his executive order. That resolutionsimply did not give the president carte blanche to write his ownlegislation on whatever subject he deemed necessary. And becauseArticle I of the Constitution vests the legislative power in theCongress, not the Office of the President, the unilateral nature ofthis executive order clearly runs afoul of the separation of powersprinciple.
As I understand it, the primary purpose of this hearing is toexplore the question of whether Congress can "codify" or "ratify"the substance of President Bush's executive order. Thus, theremainder of my statement and legal analysis will focus on otherconstitutional issues raised by the substantive content of thatexecutive order.
III. Executive Arrest Warrants Violate FourthAmendment
The Fourth Amendment of the Constitution provides, "The right ofthe people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized."
The arrest of a person is the quintessential "seizure" under theFourth Amendment. See Payton v. New York, 445 U.S. 573(1980). In many countries around the world, police agents canarrest people whenever they choose, but in America the FourthAmendment shields the people from overzealous government agents byplacing some limitations on the powers of the police. The primary"check" is the warrant application process. By requiring the policeto apply for arrest warrants, an impartial judge can exercise someindependent judgment with respect to whether sufficient evidencehas been gathered to meet the "probable cause" standard set forthin the Fourth Amendment. See McDonald v. United States,335 U.S. 451 (1948). When officers take a person into custodywithout an arrest warrant, the prisoner must be brought before amagistrate within 48 hours so that an impartial judicial officercan scrutinize the conduct of the police agent and release anyonewho was illegally deprived of his or her liberty. See County ofRiverside v. McLaughlin, 500 U.S. 654 (1988).
It is important to note that while some provisions of theConstitution employ the term "citizens" other provisions employ theterm "persons." Thus, it is safe to say that when the Framers ofthe Constitution wanted to use the narrow or broad classification,they did so. Supreme Court rulings affirm this plain reading of theconstitutional text. See Zadvydas v. Davis, 121 S.Ct.2491, 2500-2501 (2001); Yick Wo v. Hopkins, 118 U.S. 356(1886); Wong Wing v. United States, 163 U.S. 228 (1896).Noncitizens have always benefitted from the safeguards of theFourth Amendment. See Au Yi Lau v. INS, 445 F.2d 217(1971); Illinois Migrant Council v. Pilliod, 540 F.2d 1062(1976).
President Bush would like to be able to issue his own executivearrest warrants. Under his executive order, once the presidentmakes a determination that a noncitizen may be involved in certainillegal activities, federal police agents "shall" detain thatperson "at an appropriate location designated by the secretary ofdefense outside or within the United States." See ExecutiveOrder, Section 3, Detention Authority of the Secretary ofDefense. Under the order, the person arrested cannot get intoa court of law to challenge the legality of the arrest. Theprisoner can only appeal to the official who ordered his arrest inthe first instance, namely, the president. The whole purpose of theFourth Amendment is to make such procedures impossible in America.Thus, Congress cannot authorize the use of executive warrants withmere legislation. See Lynch, "In Defense of the Exclusionary Rule,"23 Harvard Journal of Law and Public Policy 711(2000).
IV. No Person Can be Deprived of Liberty Without DueProcess
The Fifth Amendment to the Constitution provides that no personcan be "deprived of life, liberty, or property, without due processof law." While no alien has a right to enter the United States,once an alien makes an entry into our country, his constitutionalstatus changes. Any person threatened with deportation has aconstitutional right to a fair hearing. See Landon v.Plasencia, 459 U.S. 21 (1982). See also LudeckeWatkins, 335 U.S. 160 (1948) (Black, J., dissenting).
President Bush would like to be able to seize and deport peoplewithout any hearing whatsoever. As noted above, under the executiveorder, the president can have people arrested outside of thejudicial process and held incommunicado at military bases. Anothersection of the order provides: "I reserve the authority to directthe secretary of defense, at anytime hereafter, to transfer to agovernmental authority control of any individual subject to thisorder." This means that any person arrested could be flown toanother country at any time. The President can choose the time andcountry. The prisoner is barred from filing a writ of habeascorpus. The problem, as Justice Robert Jackson once noted, is that"No society is free where government makes one person's libertydepend upon the arbitrary will of another." Shaughnessy v.Mezei, 345 U.S. 206, 217 (1953) (Jackson, J., dissenting).Thus, Congress cannot enact a law that would let the Presidentoverride the due process guarantee.
One should not forget that the power to deport has been abused.American citizens have been (intentionally or unintentionally)deported. See, for example, "Born in U.S.A. -- But Deported,"San Francisco Chronicle&, October 22, 1993. Somepeople have become pawns in political machinations. Six Iraqi menwho fought against Saddam Hussein are fighting bogus deportationcharges that are tantamount to a death sentence should they beforced back to Iraqi territory. See Woolsey, "Iraqi DissidentsRailroaded--by U.S.," Wall Street Journal, June 10,1998.
The federal government has great leeway in establishing thevarious grounds for deportation, but the only check on possiblearbitrary and capricious action is the due process guarantee. Thatguarantee should not be nullified.
V. Congress Cannot Suspend the Trial by JuryGuarantee
Article III, section 2 of the Constitution provides, "The Trialof all Crimes, except in Cases of Impeachment; shall be by Jury."The Sixth Amendment to the Constitution provides, "In all criminalprosecutions, the accused shall enjoy the right to a speedy andpublic trial, by an impartial jury." To limit the awesome powers ofgovernment, the Framers designed a system where juries would standbetween the apparatus of the state and the accused. If thegovernment can convince a citizen jury that the accused hascommitted a crime and belongs in prison, the accused will lose hisliberty and perhaps his life. If the government cannot convince thejury with its evidence, the prisoner will go free. In America, anacquital by a jury is final and unreviewable by statefunctionaries.
During the Civil War, the federal government set up militarytribunals and denied many people of their right to trial by jury.To facilitate that process, the government also suspended the writof habeas corpus--so that the prisoners could not challenge thelegality of their arrest or conviction. The one case that did reachthe Supreme Court deserves careful attention.
In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), theAttorney General of the United States maintained that the legalguarantees set forth in the Bill of Rights were "peace provisions."During wartime, he argued, the federal government can suspend theBill of Rights and impose martial law. If the government chooses toexercise that option, the commanding military officer becomes "thesupreme legislator, supreme judge, and supreme executive." It isvery important to recall that that legal stance had real worldconsequences during that period of our history. Some men and womenwere imprisoned and some were actually executed without the benefitof the legal mode of procedure set forth in the Constitution--trialby jury.
The Supreme Court ultimately rejected the legal positionadvanced by the Attorney General. Here is one passage from thatruling:
"The great minds of the country have differed on thecorrect interpretation to be given to various provisions of theFederal Constitution; and judicial decision has been often invokedto settle their true meaning; but until recently no one everdoubted that the right to trial by jury was fortified in theorganic law against the power of attack. It is nowassailed; but if ideas can be expressed in words, and language hasany meaning, this right--one of the most valuable in afree country--is preserved to every one accused of crime who is notattached to the army, or navy, or militia in actual service. Thesixth amendment affirms that 'in all criminal prosecutions theaccused shall enjoy the right to a speedy and public trial by animpartial jury,' language broad enough to embrace all persons andcases ..." Milligan, pp. 122-123 (emphasis inoriginal).
The Milligan ruling is sound. The Constitution doespermit the suspension of habeas corpus in certain circumstances andCongress does have the power "To make Rules for the Government andRegulation of the land and naval Forces;" and "To provide fororganizing, arming, and disciplining, the Militia." To reconcilethose provisions with the provisions pertaining to trial by jury,the Supreme Court ruled that the jurisdiction of the military couldnot extend beyond those people who were actually serving in thearmy, navy, and militia. That is an eminently sensible reading ofthe constitutional text.
President Bush would like to be able to deny noncitizens on U.S.soil the benefit of trial by jury. Under his executive order, hewill decide who can be tried by jury and who will be tried by amilitary commission. The only case in which the Supreme Court hasexplicitly upheld the constitutionality of using military tribunalsin America to try individuals who were not in the military is ExParte Quirin, 317 U.S. 1 (1942). Because theQuirin ruling carved out an exception to theMilligan holding, it must be scrutinized carefully.
The facts in Quirin are fairly straightforward. InJune, 1942 German submarines surfaced off the American coast andtwo teams of saboteurs landed on our shores--one team in New York,the other team in Florida. Those teams initially wore Germanuniforms, but the uniforms were discarded after they landed on thebeach. Wearing civilian clothes, they proceeded inland toaccomplish their mission. They were all subsequently apprehended bythe FBI.
President Franklin Roosevelt wanted these men to be tried beforea military commission so he ordered that the men be turned over tothe military authorities. FDR set up a military commission anddecreed that these prisoners would not have access to the civiliancourt system. The prisoners were tried before the militarycommission and were found guilty. Although the Attorney General ofthe United States strenuously argued that the Supreme Court had nojurisdiction over the case, the Court did grant a writ of habeascorpus that had been filed with the court by the attorneys for theprisoners.
The attorneys that had been assigned to defend the prisonerscontended that the military proceedings were inconsistent with theMilligan precedent and that the Supreme Court ought toorder a new trial. The Supreme Court rejected that argument andsought to distinguish the Milligan ruling from thecircumstances found in Quirin. The Court ruled that thejurisdiction of military commissions could extend to people who areaccused of "unlawful belligerency." Under the rationale ofQuirin, anyone accused of being an unlawful belligerentcan be deprived of trial by jury. Even an American citizen who isfound out on U.S. soil can be tried and presumably executed by U.S.military authorities as long as he or she is charged and convictedof "unlawful belligerency."
In my view, the Quirin ruling cannot be reconciled withthe constitutional guarantee of trial by jury. The flaw that I seein Quirin (and in the writings of those who defendQuirin) is circularity. We are told that a prisoner is notentitled to trial by jury because he is an unlawful combatant. Theprisoner denies the charge and demands his constitutional rights sothat he can establish his innocence. The government responds bydiverting the case to a military tribunal. And, we are told, thesubsequent conviction confirms the fact that the prisoner isineligible to appeal his sentence to the civilian court system.That is like saying that a convicted rapist should not be given aDNA test because he is a convicted criminal. See "Final DNA TestFail to Tie Four Men Convicted of Rape and Murder to the Crime,"Associated Press, December 4, 2001.
Because of the hastiness of Quirin proceedings, therecord in the case is (intentionally or unintentionally)incomplete. The case does not disclose the circumstances underwhich the prisoners were detected and captured by the FBI. Thatomission obscures the legal issues that are being debatedpresently.
For what it is worth, here is my own legal analysis of thecircumstances presented by Quirin. When the German u-boatsurfaced off of the American coast, our country was in a declaredstate of war against Germany. Thus, our military forces would havebeen perfectly entitled to destroy the u-boat and its occupants.Similarly, when the saboteurs arrived on the beach, they could havebeen immediately shot by military personnel or by any American.However, once the saboteurs successfully made their way inland andinfiltrated our society, their legal status changed.
Those who resist that conclusion need to recognize the dilemmaposed by imperfect knowledge. A primary function of the trialprocess is to determine the truth. Anyone who assumes thata person who has merely been accused of being an unlawful combatantis, in fact, an unlawful combatant, can understandably maintainthat such a person is not entitled to our constitutionalsafeguards. The problem, once again, is that that argument begs thequestion under consideration. And the stakes here are not trivial.The lives of human beings are potentially on the line.
The basic rule ought to be that if the government wants toexecute or imprison anyone on U.S. soil, the government mustproceed according the procedures set forth in the Constitution.There are, to be sure, some very limited exceptions. For example,assume that our Navy planes had discovered and attacked the Germanu-boat off the coast of Florida and some German sailors abandonedtheir vessel and swam for shore. Reaching the beach would not, inmy view, trigger constitutional protections for the sailors. Enemypersonnel can be taken into custody as POWs. The legal distinctionthat I have drawn--whether a person has made an "entry"--is notnew; it is a sensible distinction that also happens to runthroughout U.S. immigration law. See Zadvydas v. Davis,121 S.Ct. 2491, 2500 (2001).
To conclude, Congress should not attempt to exploit themisguided Quirin ruling and suspend the guarantee of trialby jury for people here in the United States. Note, however, thatpolicymakers may have choices beyond criminal indictment and sheerhelplessness. The federal government, for example, already has thepower to deport people who may pose a threat to our nationalsecurity. And the burden of proof in a deportation proceeding isproperly much lower than the standard of proof in criminaltrials.
VI. Forums for War Criminals CapturedOverseas
There appear to be four possible legal forums to try suspectedwar criminals that are captured overseas: (1) trial in a civiliancourt here in America, according to our normal federal rules ofcriminal procedure; (2) trial by a non-Article III court; (3) trialin a international forum; (4) trial before an ad hoc court basedupon Nuremberg principles. Let me briefly address thesepossibilities in turn.
A criminal trial in a civilian court here in America does notrequire extended discussion. This procedure was used to try thePanamanian leader Manuel Noriega, the terrorists who bombed theWorld Trade Center in 1993, and the bombers of the Oklahoma Cityfederal building in 1995.
A criminal trial in a non-Article III court here in America oroverseas has precedent. After World War II, some German andJapanese POWs were accused of war crimes and were tried beforemilitary tribunals. See Application of Yamashita, 327 U.S.1 (1946).
In recent years there has been much discussion surrounding thecreation of an "International Criminal Court" (ICC). The idea hereis to establish a permanent court that can try individuals for warcrimes, genocide, and other crimes against humanity. To becomeeffective, the ICC Treaty requires 60 nations to ratify itsprovisions. Thus far, only 43 nations have signed off on thetreaty. However, even if the ICC treaty were ratified tomorrow, itprovisions are not retroactive and could not be applied againstterrorists for the vicious attacks on the World Trade Center. Thus,on closer examination, this is not a feasible possibility. Thereare, in any event, many good reasons to withhold U.S. support forsuch a tribunal. See Dempsey, "Reasonable Doubt: The Case Againstthe Proposed International Criminal Court," Cato Institute PolicyAnalysis no. 311 (July 16, 1998).
A temporary, ad hoc, tribunal based upon Nuremberg principles isanother possibility. After World War II, the Allied Nations triedNazi war criminals in Nuremberg. At present, the former dictator,Slobodon Milosevic, is being tried before the InternationalCriminal Tribunal for the Former Yugoslavia, which is also based onNuremberg principles.
Because a regular criminal trial in the United States isstraightforward and the ICC seems unrealistic, let me brieflyexplain why I think a trial by an ad hoc tribunal based uponNuremberg principles may be the best forum.
First, government prosecutors can avoid habeas corpus appeals inthe U.S. court system, which absent congressional action, willalmost certainly develop post-trial.
Second, a reasonable argument can be made that bona fideintelligence information should not have to be disclosed in apublic forum. A non-Article III court proceeding must still comportwith due process and intelligence sources likely would have to bedisclosed in order to counter meritorious objections from defensecounsel, and, thus, the possibility of a lengthy retrial.
In sum, my view is that war criminals captured on U.S. soil mustbe tried in our civilian court system. War criminals capturedoverseas can be tried in a civilian court here in the United Statesor by a Nuremberg-type tribunal.