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I. Subjecting terrorists to trial by military tribunal is completely consistent with the United States Constitution and with this nation's historical precedent.
As I wrote in an editorial that appeared in the Wall Street Journal two weeks after the September 11th attacks, the President's responsibility to protect our citizens from foreign terrorists implicates very different concerns from those raised by our standard law enforcement process as administered by our civilian courts.
There can be no doubt that the perpetrators of the September 11th attacks are more than simple criminals. By their level of organization, their access to vast reservoirs of foreign resources, their professed dedication to the destruction of the United States, and their strategy of targeting and slaughtering our civilian population, it is plain that these terrorists, and those who support them, are nothing less than combatants engaged in an armed conflict with the United States.
Congress has acknowledged the existence of this armed conflict, passing on September 18, a joint resolution authorizing the President to use armed force against the perpetrators of the September 11th attacks, in light of the "unusual and extraordinary threat to the national security and foreign policy of the United States."
In this context, when fulfilling his responsibility to protect our citizens from armed combatants against the United States, the President's authority flows, not from his role as the nation's chief law enforcement officer, but rather from his role as Commander-in-Chief of the nation's Armed Forces.
In exercising his authority as Commander-in-Chief, the President is not bound to afford captured combatants the same protections afforded to criminal defendants by the Bill of Rights.
It is absurd to suggest that the U.S. military must observe the same civil liberties in its interaction with foreign soldiers that our law enforcement agents must observe in their interactions with common criminal defendants. While a U.S. serviceman must abide by certain domestic and international rules of engagement when conducting a war, he is certainly not responsible for conforming his actions to the U.S. Constitution. A U.S. soldier need not obtain a search warrant prior to entering an enemy building, nor must he advise a captured soldier of his right to retain an attorney.
If an enemy combatant is taken into custody, there remain domestic and international norms that must be observed in the treatment of that prisoner. However, trial by jury in a civilian court is not a right enjoyed by such a prisoner. Neither the United States Constitution, nor any international treaty, imposes the incongruous obligation that a captured combatant must receive a trial in a civilian court.
Nor has it been our practice, at any time during the history of this country, to attempt to provide trials for captured combatants in our civilian courts.
Military tribunals, such as those authorized by the President's recent Executive Order, are the traditional means by which foreign combatants, including terrorists, have, historically, been brought to justice.
Military tribunals were used extensively by this country during and after World War II. Hundreds of German and Japanese prisoners were tried by military tribunals for violations of the law of war following the end of that war. In 1942, President Franklin Roosevelt convened a military tribunal in Washington, DC, to try eight Nazi saboteurs who were arrested in New York and Chicago after embarking on our East Coast from German submarines.
During and after the Civil War, military commissions were used to try war criminals, including the individuals who participated in the assassination of President Lincoln.
Military tribunals were used to try war criminals during the Mexican-American War, various wars against the American Indians, and the American Revolution.
The Supreme Court has consistently approved of military tribunals, explaining in one case, "Since our nation's earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war." [Madsen v. Kinsella, 343 U.S. 341, 346-47 (1952)]
Congress has expressly authorized the use of such tribunals in Title 10 of the United States Code [10 U.S.C. § 821], and has provided that the President shall have the power to prescribe the procedures to be used [10 U.S.C. § 836] .
There are some critics who have argued that certain rights, such as the right to a trial by jury and the right to indictment by grand jury, are essential elements of the "American Way," and must be provided in all contexts, even to enemy prisoners of war. To these critics, I say that our own servicemen are subject to the Uniform Code of Military Justice, which does not provide for such rights. It would indeed be peculiar to insist that captured enemy combatants are entitled to greater rights than those provided to our own soldiers.
Other critics have predicted that the procedures established for these tribunals may amount to little more than a "kangaroo court," with rules that are so slanted against a defendant that justice will not be served. To these critics, I say your criticism is, as of now, unfounded. The Secretary of Defense has yet to issue a code of procedures for these tribunals. This nation has, in the past, conducted trials by military tribunal that meet all reasonable standards of both substantive and procedural due process. Such tribunals have, in the past, resulted in both convictions and acquittals of the individuals charged with violations of the law of war. There is no reason to believe that our Secretary of Defense will establish patently unfair procedures for trials pursuant to the President's directive.
II. Considerations of national security should properly be weighed as the government determines whether to divulge the identities of individuals who have been detained in connection with the investigation into the September 11th attacks.
There have been allegations that the Justice Department has acted improperly in failing to divulge publicly to the press the identities of all persons being detained in connection with the investigation into the September 11th attacks.
I have seen no evidence to suggest that the Justice Department has acted improperly in this respect.
In his capacity as Commander-in-Chief of the armed forces, the President and his cabinet must retain the right to designate certain information as classified in order to protect our national security and to preserve the integrity of ongoing criminal investigations.
The Freedom of Information Act, which is the primary vehicle for ensuring the openness of our democratic government, expressly recognizes the government's authority to withhold certain information to protect national security and to preserve the integrity of ongoing criminal investigations.
It is perfectly reasonable to expect that releasing the names of those individuals being detained in connection with this investigation would have a negative impact on our efforts to track down other terrorists and to protect against further terrorist attacks. While I am not privy to the details of the current investigation, my experience as Attorney General leads me to believe that such information would be extremely useful to those terrorists who remain at large.
The fact that the Justice Department has not provided this information to the press does not mean that the detainees are powerless to vindicate their rights. It is my understanding that each of the detainees in question is either believed to be here in violation of our immigration laws, or is being held on a material witness warrant. The Attorney General has represented that each of these detainees has had access to legal counsel should they wish to challenge the basis for their detention. Presumably, counsel for any one of the detainees could contact the press if it were in the interest of that detainee to do so. Moreover, as with any case in this country in which a person has suffered a deprivation of liberty, each of these detentions is subject to judicial review.
Also, it would seem to me that our government would be committing a serious violation of the privacy of these detainees if, for example, the Justice Department published a list of the detainees in the Washington Post or the New York Times.
In sum, I have no reason to believe that the Justice Department has acted improperly in declining to release to the press the identities of the detainees in connection with this investigation. The decision not to release such information appears to have a sound basis grounded in the operational necessities of conducting this war on terrorism.
1. The President has acted under the common law of war. Although we have not declared war since World War II, war has been authorized by the Congress through the authority to use armed forces as they are now being used in Afghanistan. Public Law 107-40. Congress authorized military tribunals in Sections 821 and 836 of Title 10 of the United States Code. Military tribunals have been used throughout the history of our nation. Major John Andre was executed after trial by a military commission during the Revolutionary War; Captain Wirtz, the Commander of Andersonville Prison, was tried by a military tribunal following the Civil War and was executed. Such tribunals were used in the Civil War and in World War II. President Roosevelt convened a military tribunal to try the German spies and General Yamashita was tried at the end of the war by a military tribunal constituted by General MacArthur. It is simply incorrect to say that there is anything irregular or illegitimate about President Bush constituting military tribunals in the current war on terrorism.
2. Is the focus of the Order too broad? I think not. It applies only to non-citizens selected by the President. The President determines from time to time in writing that it is in the interest of the United States that an individual be subject to the Order if there is reason to believe that he or she is or was a member of the Al-Qaeda or has engaged in, aided or abetted or conspired to commit acts of international terrorism or acts in preparation therefor that have caused, threatened to cause or have as their aim to cause injury to or have adverse affects on the United States, its citizens, national security, foreign policy or economy or has knowingly harbored one or more individuals described in Paragraphs (i) or (ii) of Section 2(a)(i) of the President's order. This seems to me to be a narrow focus.
3. What procedures are to be followed by the military court? These are yet to be promulgated by the Secretary of Defense. The terms of the order are such that we can be sure that any defendant will be afforded defense counsel, that a record will be made of the trial, that evidence will be limited to that which has probative value to a reasonable person.
4. Will trials before the military tribunal be without a jury? Yes. That is true also when our own soldiers are tried under the Code of Military Justice. There is no jury. We can assume that military officers serving on a military court martial or tribunal would be no less fair than a civil jury. See Comment of Secretary Stimson, Paragraphs 467 and 468 in Pogue's George L. Marshall: Organizer of Victory.
5. Will the trials be secret? No. It is nonsense to contend otherwise. What the Order provides is that classified information will be protected. We have been doing this for many years in espionage cases, which are tried in the federal courts. Classified material is protected without the denial of rights to defendants. It is in the interest of the nation to protect sources and methods in foreign intelligence. We await the procedures to be promulgated by the Secretary of Defense; it may well be that there will be procedures for protecting classified information as it is contemplated by the President's Order.
6. What of the conviction by a two-thirds vote? In the Code of Military Justice, which applies to our own servicemen, a two-thirds vote of those constituting a general military court martial applies in any sentence less than life imprisonment or death. In the case of life imprisonment, the Code provides for a three-fourths vote for conviction, and for death there must be a unanimous vote. Has the President abused his authority as Commander in Chief by providing for a two-thirds vote in the case of life imprisonment or death? I think not, although it can fairly be argued that the Code of Military Justice standard is a precedent to be considered.
7. What is the quantum of proof? In the trial of General Yamashita following World War II, the burden and quantum of proof for the tribunal constituted by General MacArthur was evidence proving or disproving the charge which, in the opinion of the tribunal, would have probative value in the mind of a reasonable person. Here, again, we should await the quantum and burden of proof that is set out in the procedures to be established by the Secretary of Defense.
8. Lastly, what of the right of appeal to the courts? The Order provides an appeal to the President or, by his order, to the Secretary of Defense. The Order purports to take away the jurisdiction of all other courts, state or federal, for these convictions. The President's order contains no reference to the writ of habeas corpus, and I believe that there is no basis for construing the order as an attempt to suspend that right. The Constitution (Article I, Section 9) provides that not even Congress can suspend the Writ of Habeas Corpus unless, when in cases of rebellion or invasion, the public safety may require it.
9. There have been a number of cases in the Supreme Court considering whether Writs of Habeas Corpus will lie from military tribunals to federal courts. In some cases, the order constituting the tribunal was silent as to the use of the writ, but Justice Jackson for the Court in Johnson v. Eisenstranger, 339 U.S. 763 (1950), dealt extensively with the question of whether non-resident enemy aliens could even use the writ. As to those cases which involve U.S. citizens, or aliens on U.S. soil, the case of In re Quirin, 317 U.S. 1 (1942), plainly established that habeas corpus review was an appropriate means for defendants to test the jurisdiction of military tribunals.
With due deference to this important Committee carrying out your oversight function and your legislative function, I suggest that it would be well to adjourn this hearing pending receipt of such orders and regulations by the Secretary of Defense, as are contemplated by Section 4(b) and (c) of the President's Order as well as the meaning of the provision in Section 4(a) of punishment "in accordance with the penalties provided under applicable law."
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