Post by James A. Broderick, J.D., M.B.A.
Much debate about the holding of prisoners at Guantanamo centers on the question of whether it is unconstitutional or at least illegal to hold them indefinitely without charging them with a crime. This memo is written in response to that sentiment.
The Sixth Amendment of the U.S. Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The scope of the amendment is limited to “criminal prosecutions” for “crimes” committed in a “State” of the United States. Note that none of these key terms [“criminal prosecutions,” “crimes,” or “State”] apply to the theory under which the prisoners are being held at Guantanamo.
Instead, they are being held as “enemy combatants,” a term that first appeared in Supreme Court jurisprudence in Ex Parte Quirin, 317 U.S. 1 (1942). There the Supreme Court reviewed the decision of a military tribunal to execute eight German agents who had secretly come ashore in the United States after arriving on a German submarine. This of course happened during World War II. They were not wearing uniforms at the time of their arrest and were found to have intended to commit sabotage. They were captured on July 2, 1942, and by July 31, their trial and appeal to the Supreme Court were completed. On August 8, 1942, six of them were executed in the electric chair! Talk about “speedy” if not very “public” justice.
The Supreme Court held that as enemy combatants they were (1) “subject to capture and detention”; (2) not entitled to the status of “prisoner of war”; and (3) subject to trial by military tribunals, not civil courts. The Court reasoned:
… the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
Obviously the issue of how promptly the prisoners’ status was to be reviewed by a tribunal did not arise in this case. One suspects that the enemy combatants in the Quirin case would have appreciated a somewhat more leisurely adjudication.
One issue raised in discussions is whether the Guantanamo prisoners could legally be held without a specific declaration of war. The answer is clearly yes. Article I, Section 8 of the Constitution grants Congress the power “to declare war,” but does not further define or elaborate the term. Congress has enacted a specific declaration of war only five times, but has authorized military action at least 13 other times. (The five wars declared by Congress were (1) the War of 1812; (2) the Mexican War; (3) the Spanish-American War; (4) WWI; and (5) WWII.) In an additional seven instances the United States has engaged in extended military engagements that were authorized by United Nations Security Council Resolutions and funded by appropriations from Congress. The power of the military to take and hold prisoners has never been seriously questioned or litigated in any of those actions.
In 1973, Congress passed the so-called War Powers Resolution in an attempt to limit the power of the President to initiate military action as Commander in Chief without Congressional approval. [It should be noted that Bill Clinton ignored the Resolution when he allowed American military action in Kosovo to persist beyond the 60-day grace period the law granted without congressional approval. As Jason Kelly observed in his review of the book The Executive Unbound: After the Madisonian Republic by Eric Posner and Adrian Vermuele (Oxford University Press, 2011), “Clinton’s actions exemplified the authority inherent in the office.”
In any event, the War Powers Resolution has never been overtly challenged by any President. In the present conflict with Al Qaeda and the Taliban, both Presidents Bush and Obama have relied on a specific resolution of Congress, 2001 Authorization for Use of Military Force (“AUMF,” P.L. 107-40) passed on September 14, 2001. The resolution provides in part:
Section 2 – Authorization For Use of United States Armed Forces
(a) IN GENERAL- That the President is authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”
So the President has Congressional authorization to “use all necessary and appropriate force against…persons he determines . . . aided the [9-11] attacks or harbored such . . . persons in order to prevent any future acts of . . . terrorism. . . . (Emphasis supplied.)” That would seem to include the power to hold as prisoner any Al Qaeda member for as long as necessary to “prevent any future acts of terrorism.”
The rights of the prisoners at Gitmo have been extensively litigated, with several cases reaching the Supreme Court.
In Rasul v. Bush, 542 U. S. 466 (2004), the Supreme Court expressly refrained from addressing whether the detainees are being held illegally or how that question should be decided. It stated that it decided only that “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing” and sent the case back “for the District Court to consider in the first instance the merits of [the detainees’] claims.”
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled on the procedural rights of a U.S. citizen who was captured in Afghanistan. The U.S. Court of Appeals for the Fourth Circuit had held that Hamdi was entitled to bring a habeas corpus action, but that, because he was captured on the battlefield, the federal courts should give complete deference to the government’s decision to hold him incommunicado in military custody. The Supreme Court ruled that, by enacting the authorization for the use of military force in Afghanistan, Congress had authorized Hamdi’s detention as an enemy combatant, but that he must be given a meaningful opportunity to demonstrate, with the assistance of counsel, that he was in fact an innocent civilian. Justice O’Connor’s plurality opinion implied that the required evidentiary hearing could be held in “an appropriately authorized and properly constituted military tribunal” rather than a federal court.
As to the nature of the grounds for detention in Hamdi, Justice O’Connor stated that the authority to detain enemy soldiers in order to prevent their return to the battlefield to take up arms again has always been a “fundamental incident of waging war.” The laws of war, including the Geneva Conventions, recognize that uniformed members of an enemy army may be detained as prisoners of war until the end of the hostilities without charges, trial, or access to counsel. The purpose of such detention is to prevent their return to the battlefield and does not depend upon any determination that they have committed any wrongdoing.
The law of war also recognizes that individuals captured fighting in an armed conflict who have not abided by rules (such as wearing uniforms and carrying their arms openly) that are intended to allow their identification as enemy soldiers are not entitled to prisoner of war status. Such “irregulars” may also be detained until the end of the conflict. These irregulars do not have a uniformed soldier’s immunity for killing, and thus are subject to criminal prosecution for murder or battery, and (as seen in Quirin) they can be executed as spies or saboteurs. These rules are consistent with both due process and military necessity. However, the law of war provides no authority for detaining without charge individuals not found on the battlefield.
No serious challenge to the concept of detaining enemy combatants has been mounted since the Hamdi case. Other litigation involving the Gitmo detainees has focused on the procedures they may employ to challenge their status as enemy combatants. Thus the principal issue in subsequent litigation is whether the prisoner is an enemy combatant or an innocent civilian, not whether he has committed a crime.
After the Hamdi case, the Department of Defense set up Combat Status Review Tribunals in 2004 to review the status of prisoners. The rules of procedure for the tribunals allowed them to hear and consider hearsay evidence, and suspects were restricted from attempting to refute or learn about evidence against them that was classified, and evidence extracted using “enhanced interrogation techniques” was deemed admissible.
Then, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court ruled that only Congress and not the Executive Branch has the Constitutional authority to set up military commissions to try captives. As to the merits of the case, the Court held that Common Article 3 of the Geneva Conventions of 1949 applies to persons captured in the conflict with Al Qaeda. That provided the prisoners a minimum baseline of protections, including protection from “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, [and] affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Court held that the military commissions were not “regularly constituted” because they deviated too far from the rules that apply to courts-martial under the Uniform Code of Military Justice without a satisfactory explanation of the need for departing from those rules. In particular, the Court decried commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him.
In response, Congress then passed the Military Commissions Act of 2006 in October, creating Military Commissions similar to those set up by the Department of Defense and retaining most of the features that had concerned critics. In addition, the Act also attempted to quash all pending habeas corpus submissions on behalf of the captives.
In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court ruled that the right to habeas corpus procedures extended to all the Guantanamo prisoners despite the fact that they were not confined in the United States and that the Military Commissions Act was an unconstitutional suspension of that right.
Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidence offered by the government, and government lawyers started losing cases. The Center for Policy and Research at Seton Hall University School of Law found that between 2008 and July 2010, Guantanamo detainees won 19 of 34 of their habeas challenges in federal court, indicating that in many cases, the government did not have evidence that would pass muster in trials conducted under the Federal Rules of Criminal Procedure.
In 2010 the D. C. Circuit began requiring federal trial judges to stop submitting the government’s evidence to such rigorous examination. After July 2010 and the appeals court ruling, only one of twelve petitions was successful. Thus, prior to July 2010, federal judges agreed with 56% of detainees who claimed there was insufficient evidence to justify their detention. After July 2010, detainees won only 8% of their cases. The change is attributed to rulings by the federal appeals court, which reviewed 19 of the Guantánamo habeas cases and reversed or remanded every case in which the trial judge had ordered a detainee’s release.
In December 2011, Congress passed the National Defense Authorization Act for FY2012 (“2012 NDAA,” P.L. 112-81), intended to codify the present understanding of the detention authority conferred by the AUMF, as interpreted and applied by the Executive and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The NDAA does not address many of the legal issues involving wartime detention that have been left unresolved by the Supreme Court. A Congressional Research Service Report on the subject lists the following unresolved issues: (1) full scope of the Executive’s detention authority; (2) circumstances in which U.S. citizens may be detained as enemy belligerents; (3) the degree to which noncitizens held at Guantanamo and other locations outside the United States are entitled to protections under the Constitution; (4) the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held if the Executive cannot arrange their release to another country; (5) the ability of detainees to receive advance notice and challenge their proposed transfer to a foreign country; and (6) the appropriate procedural rules and standards of evidence. According to Jennifer Elsea, the legislative attorney who authored the report, “The full implications of the 2012 NDAA upon judicial activity concerning wartime detention remains to be seen.” (You can reference this report, which provides an annotated list of all important court rulings bearing on this issue, here.)
It is misleading (although true) to say that the Guantanamo prisoners are being held without being charged with a crime. Instead, they are being held as enemy combatants taken prisoner in a military action authorized by Congress. Under the generally recognized laws of war [there are a few] and recent Supreme Court cases, that means that they are subject to incarceration until the end of hostilities. In the case of Taliban fighters, that would be until the U.S. withdraws completely from Afghanistan. In the case of Al Qaeda operatives, that might be the rest of their lives.
Be that as it may, they are still entitled to some adjudication of their status even if that procedure does not meet Sixth Amendment standards. Significantly, U.S. Army Regulation 190-8 provides for military hearings [called “Article 5 hearings”] for persons captured on the battlefield to enable them to demonstrate (1) that they are entitled to be held as prisoners of war or (2) that they are in fact innocent civilians. The regulation gives a detainee the opportunity to testify and to secure the testimony of reasonably available witnesses, but does not afford access to counsel. After the first Gulf War, the military conducted nearly 1200 such hearings, and hundreds of detainees were released as innocent civilians. After the Afghanistan invasion, however, the U.S. government refused to hold a single Article 5 hearing because President Bush declared no one was entitled to POW status. The President’s declaration was criticized by many international law scholars, and, in my opinion, was unwarranted. I believe it was reasonable for the President to determine that no detainee captured on the Afghan battlefield qualified as a POW: after all, none were wearing a uniform. Nevertheless, it was not reasonable to rule in advance that no detainee was an innocent civilian. That is a factual determination which can be made only on a case by case basis.
Although it was, and perhaps still is, impractical to hold full blown trials on the status of every prisoner, the government could have saved itself a lot of criticism by holding Article 5 hearings. The Supreme Court has attempted to rectify the situation by extending the right of habeas corpus to Guantanamo. In addition, and contrary to the assertions of the Bush administration, the Court ruled that the prisoners are entitled to minimal protections afforded by Article 3 of the Geneva Conventions of 1949.
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