Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions
Released: 2001-12-11T00:00:00

Summary:
On November 13, 2001, President Bush signed a Military Order pertaining to the detention,treatment, and trial of certain non-citizens as part of the war against terrorism. The order makesclear that the President views the crisis that began on the morning of September 11 as an attack "ona scale that has created a state of armed conflict that requires the use of the United States ArmedForces." The order finds that the effective conduct of military operations and prevention of militaryattacks make it necessary to detain certain non-citizens and if necessary, to try them "for violationsof the laws of war and other applicable laws by military tribunals."
The unprecedented nature of the September attacks and the magnitude of damage and lossof life they caused have led a number of officials and commentators to assert that the acts are not justcriminal acts, they are "acts of war." The President's Military Order makes it apparent that he plansto treat the attacks as acts of war rather than criminal acts. The distinction may have more thanrhetorical significance. Treating the attacks as violations of the international law of war could allowthe United States to prosecute those responsible as war criminals, trying them by special militarycommission rather than in federal court.
The purpose of this report is to identify some of the legal and practical implications oftreating the terrorist acts as war crimes and of applying the law of war rather than criminal statutesto prosecute the alleged perpetrators. The report will first present an outline of the sources andprinciples of the law of war, including a discussion of whether and how it might apply to the currentterrorist crisis. A brief explanation of the background issues and arguments surrounding the use ofmilitary commissions will follow. The report will then explore the legal bases and implications ofapplying the law of war under United States law, summarize precedent for its application by militarycommissions, and provide an analysis of the President's Military Order of November 13, 2001. Finally, the report discusses considerations for establishing rules of procedure and evidence thatcomport with international standards.

subsections: section_title: Appendix A
paragraphs: Military Order of November 13, 2001.
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism 
By the authority vested in me as President and as Commander in Chief of the Armed Forces of theUnited States by the Constitution and the laws of the United States of America, including theAuthorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) andsections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: 
Section 1. Findings. 
(a) International terrorists, including members of al Qaida, have carried out attacks on United Statesdiplomatic and military personnel and facilities abroad and on citizens and property within theUnited States on a scale that has created a state of armed conflict that requires the use of the UnitedStates Armed Forces. 
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks onSeptember 11, 2001, on the headquarters of the United States Department of Defense in the nationalcapital region, on the World Trade Center in New York, and on civilian aircraft such as inPennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declarationof National Emergency by Reason of Certain Terrorist Attacks). 
(c) Individuals acting alone and in concert involved in international terrorism possess both thecapability and the intention to undertake further terrorist attacks against the United States that, if notdetected and prevented, will cause mass deaths, mass injuries, and massive destruction of property,and may place at risk the continuity of the operations of the United States Government. 
(d) The ability of the United States to protect the United States and its citizens, and to help its alliesand other cooperating nations protect their nations and their citizens, from such further terroristattacks depends in significant part upon using the United States Armed Forces to identify terroristsand those who support them, to disrupt their activities, and to eliminate their ability to conduct orsupport such attacks. 
(e) To protect the United States and its citizens, and for the effective conduct of military operationsand prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant tosection 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and otherapplicable laws by military tribunals. 
(f) Given the danger to the safety of the United States and the nature of international terrorism, andto the extent provided by and under this order, I find consistent with section 836 of title 10, UnitedStates Code, that it is not practicable to apply in military commissions under this order the principlesof law and the rules of evidence generally recognized in the trial of criminal cases in the UnitedStates district courts. 
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destructionthat would result from potential acts of terrorism against the United States, and the probability thatsuch acts will occur, I have determined that an extraordinary emergency exists for national defensepurposes, that this emergency constitutes an urgent and compelling government interest, and thatissuance of this order is necessary to meet the emergency. 
Sec. 2. Definition and Policy . 
(a) The term "individual subject to this order" shall mean any individual who is not a United Statescitizen with respect to whom I determine from time to time in writing that: 
(1) there is reason to believe that such individual, at the relevant times, 
(i) is or was a member of the organization known as al Qaida; 
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or actsin preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury toor adverse effects on the United States, its citizens, national security, foreign policy, or economy;or 
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) ofsubsection 2(a)(1) of this order; and 
(2) it is in the interest of the United States that such individual be subject to this order. 
(b) It is the policy of the United States that the Secretary of Defense shall take all necessarymeasures to ensure that any individual subject to this order is detained in accordance with section3, and, if the individual is to be tried, that such individual is tried only in accordance with section4. 
(c) It is further the policy of the United States that any individual subject to this order who is notalready under the control of the Secretary of Defense but who is under the control of any other officeror agent of the United States or any State shall, upon delivery of a copy of such written determinationto such officer or agent, forthwith be placed under the control of the Secretary of Defense. 
Sec. 3. Detention Authority of the Secretary of Defense . 
Any individual subject to this order shall be -- 
(a) detained at an appropriate location designated by the Secretary of Defense outside or within theUnited States; 
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth,wealth, or any similar criteria; 
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment; 
(d) allowed the free exercise of religion consistent with the requirements of such detention; and 
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe. 
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to thisOrder. 
(a) Any individual subject to this order shall, when tried, be tried by military commission for anyand all offenses triable by military commission that such individual is alleged to have committed,and may be punished in accordance with the penalties provided under applicable law, including lifeimprisonment or death. 
(b) As a military function and in light of the findings in section 1, including subsection (f) thereof,the Secretary of Defense shall issue such orders and regulations, including orders for the appointmentof one or more military commissions, as may be necessary to carry out subsection (a) of this section. 
(c) Orders and regulations issued under subsection (b) of this section shall include, but not belimited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial,and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, whichshall at a minimum provide for -- 
(1) military commissions to sit at any time and any place, consistent with such guidance regardingtime and place as the Secretary of Defense may provide; 
(2) a full and fair trial, with the military commission sitting as the triers of both fact and law; 
(3) admission of such evidence as would, in the opinion of the presiding officer of the militarycommission (or instead, if any other member of the commission so requests at the time the presidingofficer renders that opinion, the opinion of the commission rendered at that time by a majority of thecommission), have probative value to a reasonable person; 
(4) in a manner consistent with the protection of information classified or classifiable underExecutive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protectedby statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of,admission into evidence of, and access to materials and information, and (B) the conduct, closureof, and access to proceedings; 
(5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense andconduct of the defense by attorneys for the individual subject to this order; 
(6) conviction only upon the concurrence of two-thirds of the members of the commission presentat the time of the vote, a majority being present; 
(7) sentencing only upon the concurrence of two-thirds of the members of the commission presentat the time of the vote, a majority being present; and 
(8) submission of the record of the trial, including any conviction or sentence, for review and finaldecision by me or by the Secretary of Defense if so designated by me for that purpose. 
Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense . 
Departments, agencies, entities, and officers of the United States shall, to the maximum extentpermitted by law, provide to the Secretary of Defense such assistance as he may request toimplement this order. 
Sec. 6. Additional Authorities of the Secretary of Defense. 
(a) As a military function and in light of the findings in section 1, the Secretary of Defense shallissue such orders and regulations as may be necessary to carry out any of the provisions of this order. 
(b) The Secretary of Defense may perform any of his functions or duties, and may exercise any ofthe powers provided to him under this order (other than under section 4(c)(8) hereof) in accordancewith section 113(d) of title 10, United States Code. 
Sec. 7. Relationship to Other Law and Forums. 
(a) Nothing in this order shall be construed to -- 
(1) authorize the disclosure of state secrets to any person not otherwise authorized to have accessto them; 
(2) limit the authority of the President as Commander in Chief of the Armed Forces or the powerof the President to grant reprieves and pardons; or 
(3) limit the lawful authority of the Secretary of Defense, any military commander, or any otherofficer or agent of the United States or of any State to detain or try any person who is not anindividual subject to this order. 
(b) With respect to any individual subject to this order -- 
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and 
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly orindirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any 
court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) anyinternational tribunal. 
(c) This order is not intended to and does not create any right, benefit, or privilege, substantive orprocedural, enforceable at law or equity by any party, against the United States, its departments,agencies, or other entities, its officers or employees, or any other person. 
(d) For purposes of this order, the term "State" includes any State, district, territory, or possessionof the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to agovernmental authority control of any individual subject to this order. Nothing in this order shallbe construed to limit the authority of any such governmental authority to prosecute any individualfor whom control is transferred. 
Sec. 8. Publication . 
This order shall be published in the Federal Register. 
GEORGE W. BUSH 
THE WHITE HOUSE, 
November 13, 2001. 
section_title: Appendix B
paragraphs: Proclamation No. 2561.
DENYING CERTAIN ENEMIES ACCESS TO THE COURTS OF THE UNITED STATES
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
WHEREAS the safety of the United States demands that all enemies who have entered uponthe territory of the United States as part of an invasion or predatory incursion, or who haveentered in order to commit sabotage, espionage or other hostile or warlike acts, should bepromptly tried in accordance with the law of war;
NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States ofAmerica and Commander in Chief of the Army and Navy of the United States, by virtue of theauthority vested in me by the Constitution and the statutes of the United States, do herebyproclaim that all persons who are subjects, citizens or residents of any nation at war with theUnited States or who give obedience to or act under the direction of any such nation, and whoduring time of war enter or attempt to enter the United States or any territory or possessionthereof, through coastal or boundary defenses, and are charged with committing or attempting orpreparing 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 suchpersons shall not be privileged to seek any remedy or maintain any proceeding directly orindirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of theUnited States, or of its states, territories, and possessions, except under such regulations as theAttorney General, with the approval of the Secretary of War, may from time to time prescribe.
IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of the United Statesof America to be affixed.
DONE at the City of Washington this 2d day of July, In the year of our Lord nineteen hundredand forty-two, and of the Independence [SEAL] of the United States of America the one hundredand sixty sixth.
FRANKLIN D ROOSEVELT
By the President:
CORDELL HULL,
Secretary of State.
Military Order of July 2, 1942. 
APPOINTMENT OF A MILITARY COMMISSION
By virtue of the authority vested in me as President and as Commander in chief of the Amy andNavy, under the Constitution and statutes of the United States, and most particularly theThirty-Eighth Article of War (U.S.C., title 10, sec. 1509), 1, Franklin Delano Roosevelt, dohereby appoint as a Military Commission the following persons:
Major General Frank R. McCoy, President
Major General Walter S. Grant
Major General Blanton Winship
Major General Lorenzo D. Gasser
Brigadier General Guy V. Henry 
Brigadier General John T. Lewis 
Brigadier General John T. Kennedy
The prosecution shall be conducted by the Attorney General and the Judge Advocate General.The defense counsel shall be Colonel Cassius M. Dowell and Colonel Kenneth Royall.
The Military Commission shall meet in Washington, D. C., on July 8th, 1942, or as soonthereafter as is practicable, to try for offenses against the law of war and the Articles of War, thefollowing persons:
Ernest Peter Burger 
George John Dasch 
Herbert Hans Haupt 
Henry Harm Heinck 
Edward John Kerling 
Hermann Otto Neubauer 
Richard Quirin 
Werner Thiel
The Commission shall have power to and shall, as occasion requires, make such rules for theconduct of the proceeding, consistent with the powers of military commissions under the Articlesof War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidenceshall be admitted as would, in the opinion of the President of the Commission, have probativevalue to a reasonable man. The concurrence of at least two-thirds of the members of theCommission present shall be necessary for a conviction or sentence. The record of the trial,including any judgment or sentence, shall be transmitted directly to me for my action thereon.
FRANKLIN D ROOSEVELT
THE WHITE HOUSE,
July 2, 1942.
Military Order of January 11, 1945.
GOVERNING THE ESTABLISHMENT OF MILITARY COMMISSIONS FOR THE TRIALOF CERTAIN OFFENDERS AGAINST THE LAW OF WAR AND GOVERNING THEPROCEDURE FOR SUCH COMMISSIONS
By virtue of the authority vested in me as President and as Commander in Chief of the Armyand Navy, under the Constitution and statutes of the United States, and more particularly theThirty-Eighth Article of War (10 U.S.C. 1509), it is ordered as follows:
1. All persons who are subjects, citizens or residents of any nation at war with the United Statesor who give obedience to or act under the direction of any such nation, and who during time ofwar enter or attempt to enter the United States or any territory or possession thereof, throughcoastal or boundary defenses, and are charged with committing or attempting or preparing tocommit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall besubject to the law of war and to the jurisdiction of military tribunals. The commanding generalsof the several service and defense commands in the continental United States and Alaska, underthe supervision of the Secretary of War, are hereby empowered to appoint military commissionsfor the trial of such persons.
2. Each military commission so established for the trial of such persons shall have power tomake and shall make, as occasion requires, such rules for the conduct of its proceedings,consistent with the powers of military commissions under the Articles of War, as it shall deemnecessary for a full and fair trial of the matters before it: Provided, that
(a) Such evidence shall be admitted as would, in the opinion of the president of thecommission, have probative value to a reasonable man;
(b) The concurrence of at least two-thirds of the members of the commission present at the timethe vote is taken shall be necessary for a conviction or sentence;
(c) The provisions of Article 70 of the Articles of War, relating to investigation and preliminaryhearings, shall not be deemed to apply to the proceedings;
(d) The record of the trial, including any judgment or sentence, shall be promptly reviewedunder the procedures established in Article 501/2 of the Articles of War.
FRANKLIN D ROOSEVELT
THE WHITE HOUSE,
January 11, 1945.