The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process ... [T]hey will have a fair trial, but it'll be under the procedures of a military tribunal and rules and regulations to be established in connection with that ... We think [it] guarantees that we'll have the kind of treatment of these individuals that we believe they deserve. (1)
"Bush [has] undermined the anti-terrorist coalition, ceding to nations overseas the high moral and legal ground long held by U.S. justice. And on what leg does the U.S now stand when China sentences an American to death after a military trial devoid of counsel chosen by the defendant?" (2)
In this paper, the competing reasons for prosecuting foreign terrorists under tribunals, be they domestic, foreign, international, military, or a combination of the above, are explored. A focus is specifically given to the efforts being taken against the al Qaeda militants detained in Guantanamo Bay, Cuba. (3) U.S. foreign policy and international human rights concerns are juxtaposed against the public desire for retribution in the wake of the September 11th attacks, and the question of whether the U.S. is better served by prosecuting foreign terrorists under international tribunals is discussed.
Section I provides an introduction to military tribunal terminology and procedure. Section II describes the history of the international military tribunal as created in 1945, the use of foreign national tribunals, the International Court of Justice, and the rise of the International Criminal Court. Section III discusses both the history of domestic military tribunals and President Bush's military tribunals (4) plan. Section IV discusses the arguments for and against applying either international legal or U.S. constitutional protections to al Qaeda. Section V addresses whether America's foreign policy interests are best served by prosecuting al Qaeda members in U.S. military tribunals or under an international tribunal. The conclusion follows in Section VI.
I. AN INTRODUCTION TO MILITARY TRIBUNAL TERMINOLOGY AND PROCEDURE
In its most traditional form, a military tribunal is a war-time judicial proceeding "used to try violations of the laws of war." (5) According to the Bush Administration, the September 11th attacks on the World Trade Center complex, the Pentagon, and on Flight 93, grounded in Pennsylvania, constitute "acts of war," (6) and attacks on innocent persons, a violation of the laws of war. The Bush Administration has determined that the culprits of those attacks are a "collection of loosely-associated terrorist organizations known as al Qaeda." (7)
President Bush, under both his power and authority as the Commander-In-Chief of the military as provided by Article II of the U.S. Constitution, and under Article 21 of the Uniform Code of Military Justice, has the power to convene military tribunals. (8) Under U.S. law, the Supreme Court permits the use of military tribunals against non-citizens unless, under the Geneva Convention, those defendants are considered "prisoners of war." (9) However, the Supreme Court does not restrict military tribunals to use against non-citizens: in Ex parte Milligan, the Supreme Court held that U.S. citizens may be tried by military tribunals, but only if civilian courts are "not open." (10)
Under the International Covenant on Civil and Political Rights, the United Nations requires that military tribunals be fundamentally fair. (11) Among the Civil and Political Rights Covenant's requirements, a military tribunal must ensure a "fair and public hearing by a competent, independent and impartial tribunal established by law," (12) and provide the defendant with the presumption of innocence. (13) The defendant must be informed "promptly and in detail in a language which he understands ... the nature and cause of the charge against him." (14) The provisions require that the defendant have counsel chosen by him, (15) be able to face and challenge his accuser, (16) have the right to remain silent, (17) and have the right to appeal. (18) President Bush's military tribunal plan, discussed in section III, below, substantially meets those criteria. (19)
II. FOREIGN AND INTERNATIONAL TRIBUNAL USAGE
A. A Brief History of Foreign and International Military Tribunal Usage
Military tribunals have an extensive history, having occurred over a span of time that ranges at least 2500 years. (20) With such an extensive history, one may wonder just what the attraction is. Perhaps the answer is that, historically, the military provided the only means to conduct such a proceeding. However, as discussed below, military tribunals offer one very attractive benefit: the ability to publicly bring an adversary war power's leaders to justice. Quite often, that application of justice involves employing the death penalty. (21)
The first known use of a military tribunal occurred in 405 B.C., after the destruction of the Athenian fleet at Aegospotamos. (22) According to the ancient historian Xenophon, the Lacedaemonian admiral Lysander called a meeting of his allies to determine the fate of the vanquished Athenians. (23) The Athenians were accused of several war crimes, and were summarily executed. (24)
A more modern use of the military tribunal was seen during the Middle Ages. These tribunals were distinguished from earlier ones because here, trials were actually held. In 1474, Sir Peter of Hagenbach, made Governor of Breisach by the conquering Duke Charles of Burgundy, was captured and tried for war crimes he committed in the town of Breisach. (25) Hagenbach argued that he was not to blame; he merely acted under the orders of his commanding officer. Hagenbach's "superior orders" defense fell upon deaf ears: he was sentenced to death and executed. (26)
One popular nineteenth century example occurred when Napoleon Bonaparte, after his escape from exile in Elba, returned to France leading an army. (27) He was subsequently captured and tried. Under the terms of the prior Congress of Vienna's Declaration of March 13, 1815, Napoleon had been declared an outlaw and subject to any actions that the Allied powers deemed appropriate. (28) Placed in custody of the British Government, Napoleon was again exiled, this time to St. Helena. (29) While not an example employing execution, this does provide precedent for the applicability of a military tribunal's use to try an adversary's most senior leader.
B. The Rise of Foreign and International Military Tribunals
The use of international military tribunals has its genus in the various peace treaties signed in 1919, at the end of World War I. Article 227 of the Treaty of Versailles provided for a special tribunal composed of judges from the U.S., Great Britain, France, Italy, and Japan, to try William II, the former German Emperor, for offenses "against international morality and the sanctity of treaties." (30) Under that Treaty's Article 228, provisions were included for military tribunals of German individuals accused of "having committed acts in violation of the laws and customs of war." (31) The Treaty of Saint-Germain-En-Laye (32) provided similarly for the Austrians, the Treaty of Neuilly-Sur-Seine (33) for the Bulgarians, the Treaty of Trianon (34) for the Hungarians, and the Treaty of Sevres (35) for the Turks. Pursuant to the Treaty of Versailles, the Allied powers submitted a list of 896 individuals to be handed over for trial. (36) Concerns over a renewed war between Germany and the Allies, or a civil war in Germany, however, led to the abandonment of the requirement that Germany surrender those accused for trial. (37)
In 1945, following the end of World War II, international military tribunals again arose, now as a means created "in the interests of the United Nations," (38) to try those responsible for both war crimes and crimes against humanity. (39) The Agreement ... for the Prosecution and Punishment of the Major War Criminals of the European Axis [hereinafter the "London Agreement"], (40) signed by representatives from the U.S., the United Kingdom, the U.S.S.R. and France, formed the foundation for conducting the Nuremberg Trials. These trials were the first actual historical precedent for the international trial and punishment of war criminals. (41) Nearly one year later, the first Nuremberg trial concluded. (42) Twelve defendants, including the Nazi's second-in-command, (43) Herman Goering, were sentenced to death. (44) The defendants were executed two weeks later. (45) That same year, international military tribunals were used to try Japanese for war crimes. (46) Twenty-four of twenty-five defendants were convicted, including the Japanese Prime Minister General Hideki Tojo, who was condemned to death and hung. (47)
While the London Agreement permitted domestic trials, (48) they were not so limited. The U.S. tried many foreign defendants under U.S. military commissions conducted in the defendants' own countries. According to Deputy Defense Secretary Paul Wolfowitz, these foreign military tribunals were very successful: "[I]n Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions ... 856 were convicted." (49)
Although the use of international tribunals was nearly dormant for the fifty ensuing years, the 1990's again saw the convening of international tribunals. (50) This time they were non-military tribunals, created under the auspices of the United Nations Security Council, and were used to try defendants accused of genocide in Yugoslavia and Rwanda. (51) The next section describes their creation and use.
C. The International Court of Justice and the Rise of the International Criminal Court
The International Court of Justice is the "principal judicial organ" of the United Nations. (52) It was created in 1945 under the Charter of the United Nations, (53) with the primary aim of resolving disputes between U.N. member states. (54) Accordingly, this "principal judicial organ" has no jurisdiction over matters involving individual criminal responsibility. (55) However, on an ad hoc basis, the United Nations has created tribunals to deal with individual responsibility for the crime of genocide, and other war crimes. (56)
In 1993, the United Nations' Security Council established the International Crimes Tribunal for the Former Yugoslavia. (57) That tribunal was established with the mandate of trying individuals accused of genocide and crimes against humanity. (58) The tribunal's primary defendant is the former Yugoslavian president Slobodan Milosevic, whose trial began in February, 2002. (59) While charged with both genocide and lesser crimes against humanity, in accordance with the United Nations' stance on human rights, (60) even were Milosevic convicted on all counts, the most severe sentence he could receive is life imprisonment. (61) In 1994, the United Nations Security Council again formed an international tribunal, this time to try 35 defendants accused of the genocide of Tutsis and Hutus in Rwanda. (62) The first defendant convicted in this continuing trial was a Rwandan mayor, Jean-Peal Akayesu. (63) By Security Council mandate, both of these ad hoc tribunals dealt only with crimes committed in those two areas during "specific periods of time." (64) As such, the ad hoc tribunals have been specifically empowered to deal with specific crimes during defined time periods, and are not provided the power to try all such crimes occurring at any point in time.
In response to the large numbers of horrific war crimes occurring in the recent past, (65) coupled with the understanding that there is no continuously-serving international body specifically charged with the jurisdiction over individuals committing such crimes, there has been a recent push to create an International Criminal Court. (66) The International Criminal Court [hereinafter the "ICC"] has just recently passed the ratification process. (67)
The ICC is designed as "a permanent, independent institution capable of addressing the crimes identified in [its founding document] on an ongoing basis...." (68) The ICC, however, is not designed to supplant domestic judicial bodies. Rather "the Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute such crimes." (69) The ICC is specifically designed to hold individuals criminally responsible for acts of genocide, crimes against humanity, war crimes and "aggression." (70) Due to an inability to agree on a definition, terrorism was not included among that list. (71) Because the ICC has just passed the ratification process and its founding members have failed as of yet to agree on a definition of terrorism, were the United Nations to convene an international tribunal to address the terrorist acts of September 11th, it would likely be convened in one of two forms: either as an ad hoc tribunal under a Security Council Resolution, or as an international trial under the ICC following the creation of a working definition of terrorism.
III. U.S. MILITARY TRIBUNALS
A. A Brief History of U.S. Military Tribunal Usage
U.S. history is punctuated by several military tribunals. (72) It is believed that the first such use may have come as early as 1780, (73) when Major John Andre, Adjutant-General to the British Army, was tried as a spy before a "Board of General Officers" and was hung. (74) The first official U.S. military tribunals are traced to 1847, during the U.S.-Mexican War, where General Winfield Scott ordered that U.S. forces committing violations of the law of war be punished by military tribunal. (75) One notable occurrence is the 1865 military tribunal used to sentence four individuals to death for the conspiracy resulting in the assassination of President Abraham Lincoln. (76)
In 1942, in what is arguably the most famous military tribunal use, President Franklin D. Roosevelt ordered military tribunals to try eight German saboteurs caught sneaking ashore in New York and Florida. (77) In Ex parte Quirin, a habeas corpus proceeding brought appurtenant to that case, the U.S. Supreme Court held that military tribunals may be used to try "unlawful combatants." (78) The significance of that determination is discussed below.
B. U.S. Military Tribunals as Applied in Ex Parte Quirin
"I want one thing clearly understood ... I won't hand them over to any United States Marshal armed with a writ of habeas corpus." (79)
The story behind Ex parte Quirin is a wild tale of international intrigue. (80) Each of the eight German-born saboteurs had spent time living and working in the U.S. (81) Each returned to Germany between 1933 and 1941, (82) under a plan which offered any German citizen a free one-way ticket home. (83) Each was subsequently recruited and trained under Operation Pastorius, (84) and given the goal of targeting both war-important sites and creating generalized terror in the U.S. (85)
The eight saboteurs arrived by U-boat between June 13 and 17, 1942, (86) landing in New York and Florida. (87) The saboteurs, fortunately, never achieved their destructive goals: within two weeks, the F.B.I. had captured them all. (88) On July 2, 1942, President Roosevelt appointed a Military Commission, directing it to try the saboteurs for violations of the Articles of War. (89) The same day, the President declared that:
all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States. (90)
The military tribunal began July 8, 1942, (91) in room 5235 of the Department of Justice. (92) The eight saboteurs were tried before a tribunal of seven, which …