Due Process... for Terrorists?





Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions is a law review article arguing against two the main points raised by the district court in the Hamdan v. Rumsfeld case in 2004. Firstly, the district court in Hamdan states that the utilization of military tribunals as ordered by President Bush after the 2001 terrorist attacks is an unconstitutional violation of civil liberties. Second, the court stated that military tribunals were in violation of the third Geneva Convention. For these reasons, the District Court in Hamdan invalidated the use of military tribunals for detainees captured in Afghanistan after the September 11, 2001 terrorist attacks.

The article begins with the history of rise of the Taliban in Afghanistan, and the subsequent formation of Al Qaeda. In 1973, the Taliban became a republic, but due to a weak government and a civil war, the Taliban gained control of the majority of Afghanistan in 1996. Al Qaeda was set into motion in 1982, and Osama Bin Laden was one of its fighters. The Taliban existed, unopposed, until the attacks on American in 2001, when America declared war on terrorism. After the September 11 terrorist attacks on the world trade centers in New York City, Congress passed a resolution allowing the sitting president, George W. Bush, to use “all appropriate force against those. Persons he determines planned, authorized, committed or aided the attacks”. Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). The Taliban refused to turn over Al Qaeda operatives, and hence fell under violation of the Congressional order. President Bush, in his position as commander and Chief of the Armed forces, issued a military order regarding the trying of detainees (usually brought to Guantanamo Bay) while they were interned in order to prevent them from returning to arms against America. Among the details of this military order was the instruction that all detainees from the War on Terror were to be tried by military tribunals.

The article then commences to briefly describe the history and procedural requirements of military tribunals. Firstly, the President must determine that an individual is subject to the military order, at which point the “Appointing Authority may decide to bring criminal charges

against” the individual. Id. The appointing authority also decides who shall make up the military tribunal panel which hears the case, of which a two thirds majority will be needed to determine guilt & assign a sentence, “with the exception of the death penalty, which can only be reached upon by unanimous agreement”; however the President has the final decision. (Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). The President can mitigate a sentence, but cannot “change a not-guilty verdict into a guilty verdict.” Id. It should also be mentioned that the rules of evidence are different, and the death penalty sentence happens more often & more quickly.

There are pros and cons to military tribunals, which are discussed in detail in the later portion of the law review article. Arguments against military tribunals include the trampling of civil liberties and the violation of international human rights via the third Geneva Convention, which relates to the treatment of prisoners during times of war. Each of these arguments is addressed in turn, however it should be stated in advance that the district court which tried the Hamdan case did find that military tribunals were unconstitutional for the reasons that will be argued against subsequently.

First, Tannenbaum addresses the third Geneva Convention regarding the treatment of prisoners of war. Those in favor of declaring Hamdan a prisoner of war and granting him, and detainees like him, a trial by an international tribunal versus a military tribunal claim that these actions will preserve the US stance on human rights, and increase the likelihood that US soldiers that are captured will likewise be treated as Prisoners of War. The author argues that this policy does not apply to Hamdan because Hamdan is not a prisoner of war as a member of Al Qaeda because he was not captured on a war against any “state or party to the Geneva Convention” but in a war “against global terrorism”. (Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). Al Qaeda operatives do not carry arms openly, and deliberately targets civilians, exempting them from Geneva protections.

The district court which outlawed military tribunals in Hamdan also states that military tribunals weaken liberties because the President bypassed Congress when issuing orders. The Presidents power is at a maximum when the President acts pursuant to Congress’ express or implied desires. However, there is debate between the President’s express role as Commander and Chief of the armed forces versus the Congressional power to declare war. This is indirectly addressed by Tannenbaum, because when President Bush issued his military order, he did so with the permission of Congress via the Patriot Act, which became law on October 26, 2001. The Congress granted the President permission “to use all necessary and appropriate force” in fighting the war on terror, and this includes, Tannenbaum says, the power to create military tribunals. Comparison & Analysis

The Hamdan v. Rumsfeld1 case has a lot in common with the Hamdi vs. Rumsfeld 2 case presented in the 3rd edition of Constitutional Law by Wolters Kluwer. Both prisoners were detained after the 9-11-01 terrorist attacks for allegedly participating with Al Qaeda against American troops in a combat zone. However, the Hamdan case focuses on the validity of military tribunals as a proper exercise of executive power for detained enemy combatants, and the international repercussions of not treating Al Qaeda fighters as prisoners of war in relation to the third Geneva Convention. The Hamdi case, conversely, focuses on the rights of accused enemy combatants once they are detained, including the due process right to contest the factual basis for their captivity. Hamdan also looks to the legality of a military tribunal in trying a foreign detainee, whereas Hamdi looks to what rights are due to a citizen of the United States who disputes his enemy combatant status. Both of these cases forever changed the way Americans must treat detainees of war.

Hamdan effectively states that military tribunals are not appropriate, unbiased parties by whom detainees may be tried. Hamdi builds on this, saying that prisoners have the right to habeas corpus 3, with the exception that the request cannot validly be made while in theatre of war. 4 However, because military tribunals were declared unconstitutional in this case, Hamdan also effectively supports the holding in Hamdi; that detainees may be held indefinitely, both American and foreigners alike. Hamdan was a Afghani native, whereas Hamdi was an American citizen. However, both were treated the same once they were interned at Guantanamo Bay; as enemy combatants against the United States while the country was engaged in fighting the war on terror. The purpose of this detention is to “prevent captures individuals from returning to the field of battle and taking up arms once again”. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Congress does not dispute the validity of detention in whether case, which is not surprising as national security is the most-often cited exception to the strict scrutiny analysis. However, the strict scrutiny exception of national protection appears to end there, as expounded below.

The test to be applied is one of balance, where the courts must weigh the private interest that will be affected against the government’s asserted interest and burdens. In Hamdan, the government’s interest of security and efficiency, as well as the ability to more quickly enact the death penalty, is outweighed by Hamdan’s right to a trial by an international tribunal in the name of the Geneva Conventions and America’s reputation (and the aftermath of not complying with the convention on American P.O.W.s). Parallel this analysis with that of Hamdi, whose private right as a citizen to habeas corpus and the resulting challenge to his status as an enemy combatant outweighed the compelling government interest of ensuring that captured enemy combatants do not return to battle against the United States. Current Issues

The holdings of the Hamdan and Hamdi cases are clearly still applicable today, ten years after their respective trials, because the war in which these cases took place endures. While both human rights and the constitutional rights of American citizens, regardless of where they are in the world, is of the utmost importance, exceptions must exist to the granting of American privileges. I believe that if a person is captured in a combat zone, in a country known to harbor terrorists, while at war with the United States, after a national tragedy like September 11th, your Constitutional rights should be shelved if your captors believe you to be an enemy combatant, U.S. citizen or not. Likewise, an Al Qaeda operative who does not wear a uniform, who resorts to suicide bombing instead of openly bearing arms, and who targets citizens, like the thousands of innocents in the world trade centers and the planes that cause their collapse, should not be granted protection under the Geneva Convention and should be stripped of all rights and detained until either a trial can be had, or until the War is over, whichever occurs first. I agree with both Tannenbaum’s rationale in the law review article, as well as Justice Scalia’s dissent in the Hamdi case, that “there should be a different, special procedure for the imprisonment of an enemy combatant] accused of wrong doing by aiding the enemy in wartime.” Hamdi v. Rumsefeld, 542 U.S. 507 (2004). The compelling governmental interest of National Security should outweigh all individual rights of suspected enemy combatants. This is based on my utilitarian stance that this

policy will do the most good for the most amounts of people. The prevention of another September 11th is of the utmost importance to the American people and their families, and punishment by detainment of those suspected of being enemy combatants is justified both by the punishment theories of deterrence, as well as condemnation.

I concur with Tannenbaum’s analysis of the Geneva Convention and the consequential exclusion of Al Qaeda operatives form its protections based on their exercise of war tactics. There is an opportunity cost of American life in this war, and when mothers are sending their children out to kill and fight, their sacrifice must not be in vain. The Congressional approved powers granted to the President to enact military tribunals should not have been overruled by the District Court, and the rights of both citizens and non-citizens overseas should be suspended (and the suspected combatants, tried by tribunal) in order to expeditiously and effectively win the ongoing war on terror.

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